American Memories : Atrocities and the Law 9781610447492, 9780871547361

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AMERICAN MEMORIES

AMERICAN MEMORIES ATROCITIES AND THE LAW

JOACHIM J. SAVELSBERG AND RYAN D. KING

A Volume in the American Sociological Association’s Rose Series in Sociology

Russell Sage Foundation

•

New York

Library of Congress Cataloging-in-Publication Data Savelsberg, Joachim J., 1951– American memories : atrocities and the law / by Joachim J. Savelsberg and Ryan D. King. p. cm. — (Rose series in sociology) Includes bibliographical references and index. ISBN 978-0-87154-736-1 (hardcover : alk. paper)—ISBN 978-1-61044-749-2 (ebook) 1. Collective memory—United States. 2. Atrocities—United States. 3. War crimes—United States. I. King, Ryan D. II. Title. HM1027.U6S38 2011 909—dc23 2011022368 Copyright © 2011 by the American Sociological Assocation. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Reproduction by the United States Government in whole or in part is permitted for any purpose. The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials. ANSI Z39.48-1992. Text design by Suzanne Nichols. RUSSELL SAGE FOUNDATION 112 East 64th Street, New York, New York 10065 10 9 8 7 6 5 4 3 2 1

The Russell Sage Foundation The Russell Sage Foundation, one of the oldest of America’s general purpose foundations, was established in 1907 by Mrs. Margaret Olivia Sage for “the improvement of social and living conditions in the United States.” The Foundation seeks to fulfill this mandate by fostering the development and dissemination of knowledge about the country’s political, social, and economic problems. While the Foundation endeavors to assure the accuracy and objectivity of each book it publishes, the conclusions and interpretations in Russell Sage Foundation publications are those of the authors and not of the Foundation, its Trustees, or its staff. Publication by Russell Sage, therefore, does not imply Foundation endorsement. BOARD OF TRUSTEES Mary C. Waters, Chair Kenneth D. Brody W. Bowman Cutter III Robert E. Denham, Esq. John A. Ferejohn Larry V. Hedges

Kathleen Hall Jamieson Lawrence F. Katz Sara S. McLanahan Nancy L. Rosenblum Claude M. Steele

Shelley E. Taylor Richard H. Thaler Eric Wanner

EDITORS OF THE ROSE SERIES IN SOCIOLOGY Diane Barthel-Bouchier Cynthia J. Bogard Michael Kimmel

Daniel Levy Timothy P. Moran Naomi Rosenthal

Michael Schwartz Gilda Zwerman

THE ROSE SERIES IN SOCIOLOGY EDITORIAL BOARD Margaret Abraham Javier Auyero David Brady Lisa D. Brush Lynn Sharon Chancer Mary Ann Clawson Yinon Cohen Cynthia Fuchs Epstein Kathryn Feltey Abby L. Ferber Joshua Gamson Judith Gerson

Kathleen Gerson Naomi Gerstel Jack A. Goldstone Jeremy Hein Michael Hout David Jacobson Jeffrey D. Kentor Rebecca E. Klatch Laura Kramer Rachel V. Kutz-Flamenbaum Richard Lachmann David E. Lavin

Mary Clare Lennon Kelly Moore Pamela E. Oliver Patricia A. Roos Beth E. Schneider Gay W. Seidman Hwa-Ji Shin Verta A. Taylor Amy Elizabeth Traver Reeve Vanneman Richard Williams

Previous Volumes in the Series America’s Newcomers and the Dynamics of Diversity Frank D. Bean and Gillian Stevens Beyond the Boycott: Labor Rights, Human Rights, and Transnational Activism Gay W. Seidman Beyond College for All: Career Paths for the Forgotten Half James E. Rosenbaum Changing Rhythms of the American Family Suzanne M. Bianchi, John Robinson, and Melissa Milkie Counted Out: Same-Sex Relations and Americans’ Definitions of Family Brian Powell, Lala Carr Steelman, Catherine Bolzendahl, and Claudia Geist Divergent Social Worlds: Neighborhood Crime and the Racial-Spatial Divide Ruth D. Peterson and Lauren J. Krivo Egalitarian Capitalism: Jobs, Incomes, and Growth in Affluent Countries Lane Kenworthy Ethnic Origins: History, Politics, Culture, and the Adaptation of Cambodian and Hmong Refugees in Four American Cities Jeremy Hein Making Hate a Crime: From Social Movement to Law Enforcement Valerie Jenness and Ryken Grattet Market Friendly or Family Friendly? The State and Gender Inequality in Old Age Madonna Harrington Meyer and Pamela Herd Passing the Torch: Does Higher Education for the Disadvantaged Pay Off Across the Generations? Paul Attewell and David Lavin Pension Puzzles: Social Security and the Great Debate Melissa Hardy and Lawrence Hazelrigg Trust in Schools: A Core Resource for Improvement Anthony S. Bryk and Barbara Schneider

Forthcoming Titles Exceptional Children, Challenged Families: Raising Children with Disabilities Dennis Hogan Family Relationships Across the Generations Judith A. Seltzer and Suzanne M. Bianchi Global Order and the Historical Structures of Daral-Islam Mohammed A. Bamyeh The Logic of Terrorism: A Comparative Study Jeff Goodwin The Long Shadow: Family Background, Disadvantaged Urban Youth, and the Transition to Adulthood Karl Alexander, Doris Entwisle, and Linda Olson Nurturing Dads: Fatherhood Initiatives Beyond the Wallet William Marsiglio and Kevin Roy Repressive Injustice: Political and Social Processes in the Massive Incarceration of African Americans Pamela E. Oliver and James E. Yocum Social Movements in the World System: The Politics of Crisis and Transformation Dawn Wiest and Jackie Smith “They Say Cut Back; We Say Fight Back!” Welfare Activism in an Era of Retrenchment Ellen Reese

The Rose Series in Sociology

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HE AMERICAN Sociological Association’s Rose Series in Sociology publishes books that integrate knowledge and address controversies from a sociological perspective. Books in the Rose Series are at the forefront of sociological knowledge. They are lively and often involve timely and fundamental issues on significant social concerns. The series is intended for broad dissemination throughout sociology, across social science and other professional communities, and to policy audiences. The series was established in 1967 by a bequest to ASA from Arnold and Caroline Rose to support innovations in scholarly publishing.

DIANE BARTHEL-BOUCHIER CYNTHIA J. BOGARD MICHAEL KIMMEL DANIEL LEVY TIMOTHY P. MORAN NAOMI ROSENTHAL MICHAEL SCHWARTZ GILDA ZWERMAN EDITORS

For Jana (from RDK) and Pamela (from JJS)

“We must establish incredible events by credible evidence.” Justice Robert Jackson, U.S. Chief Prosecutor at the International Military Tribunal at Nuremberg, on June 7, 1945 “Collective frameworks are . . . precisely the instruments used by the collective memory to reconstruct an image of the past which is in accord, in each epoch, with the predominant thoughts of the society.” Maurice Halbwachs in On Collective Memory “Judges . . . enclose their thought within forms that . . . bear the imprint of a remote period. This indicates how deeply legal thought is pervaded by history.” Maurice Halbwachs in On Collective Memory “Beliefs express . . . life in terms of representations; rites organize it and regulate its functioning.” Emile Durkheim in The Elementary Forms of Religious Life

Contents

About the Authors

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Acknowledgments

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Introduction: How Maurice Halbwachs Died—and How We Remember Him

CHAPTER 1 CHAPTER 2 CHAPTER 3

CHAPTER 4

CHAPTER 5

CHAPTER 6 CHAPTER 7 CHAPTER 8

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From Law to Collective Memory: Breaking Cycles of Violence?

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What the Literature Tells Us, and Uncharted Terrain

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Constructing and Remembering the My Lai Massacre with Rajiv Evan Rajan and Lacy Mitchell

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From Vietnam to Iraq: Bridging Metaphors, Mnemonic Struggles, and Haunting with Jeremy Minyard

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Slobodan Milosevic Through Lenses of Law, Diplomacy, and Media Reporting with Courtney Faue and Yu-Ju Chien

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The Shape of American Memories—and a German Comparison

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From Collective Memory to Law: Theoretical Interlude

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How American Memory Shapes Hate Crime Law—and a German Comparison

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Contents

CHAPTER 9

CHAPTER 10

Commemorating Injustice and Implementing Hate Crime Law Across Jurisdictions in the United States

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Conclusion: Atrocities, Law, and Collective Memory in the United States and Beyond

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Appendix A: History Textbooks Used in My Lai Content Analysis

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Appendix B: Detailed Tables on Coverage of Milosevic

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Notes

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References

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Index

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About the Authors

Joachim J. Savelsberg is professor of sociology at the University of Minnesota. Ryan D. King is associate professor of sociology at the University at Albany, State University of New York.

Yu-Ju Chien is Ph.D. candidate in sociology at the University of Minnesota and received her master’s degree in sociology from National Taiwan University. Courtney Faue received her bachelor’s degrees in sociology and psychology from the University of Minnesota and recently graduated from the John W. Draper Interdisciplinary Master’s Program in Humanities and Social Thought at New York University. Jeremy Minyard is instructor at Saint Paul College and holds a J.D. from Vanderbilt University and a master’s degree in sociology from the University of Minnesota. Lacy Mitchell is graduate student in sociology at the University at Albany, State University of New York, and earned her bachelor’s degree in sociology from the University of Houston–Downtown. Rajiv Evan Rajan is pursuing graduate work in sociology and received his bachelor’s degree in sociology from the University of Minnesota.

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the contributions of several institutions that funded and hosted us and of many individuals, including collaborating students and colleagues who engaged us in critical exchanges. First, work toward this book was supported by several institutions at the University of Minnesota. Joachim Savelsberg received the 2006 David Cooperman Summer Institute grant from the Department of Sociology, a fall 2007 fellowship at the Institute for Advanced Study, and a fall 2008 single-semester leave provided by the College of Liberal Arts. Ryan King acknowledges support through the Graduate Research Partnership Program, College of Liberal Arts, University of Minnesota (with Savelsberg), and a University of Minnesota Doctoral Dissertation Research Grant. Further support was provided by another Graduate Research Partnership Program grant (Jeremy Minyard with Savelsberg) and the Undergraduate Research Opportunity Program (Rajiv Evan Rajan with Savelsberg). Some of the final revision was helped by Savelsberg’s 2010 to 2011 Visiting Research Professorship at Humboldt University in Berlin, where Hans Bertram and Klaus Eder offered generous hospitality and Astrid Schaal perfect secretarial help. Finally, the American Sociological Association, through its Rose Monograph Series, provided resources for the unusually thorough process of critical discussion and review that inspired us. Second, we are most grateful to several current and former students at the University of Minnesota and the University at Albany, State University of New York, who contributed to the work on three of the chapters over the past decade. Rajiv Evan Rajan and Lacy Mitchell worked diligently and with great determination on the My Lai and New York Times analyses (chapter 3). Jeremy Minyard did valuable data collection on the Haditha killings and contributed substantially to the writing of chapter 4. Courtney Faue industriously and with great dedication collected data on the Milosevic case (chapter 5), and Yu-Ju Chien skillfully contributed data work for that chapter. We acknowledge all of E ACKNOWLEDGE

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these young scholars as co-authors of the respective chapters. Our work on collecting history textbooks was helped by Benjamin Jacobs, College of Education and Human Development at the University of Minnesota; Nancy Heather and Laurel Haycock from Wilson Library at the University of Minnesota; and Peter Bae at the University at Albany, who provided access to the lion’s share of books. Colin Gruner and Chris Rees at the University at Albany provided excellent research assistance; Tianyue Ma, also at Albany, contributed careful editorial assistance; and Karl Krohn at the University of Minnesota gave welcome computer advice. Prosecutors in Minnesota, Wisconsin, and the German state of Lower Saxony generously agreed to be interviewed, and Christian Pfeiffer, then justice minister of Lower Saxony, Stefan Suhling, and the Kriminologisches Forschungsinstitut Niedersachsen supported work on chapter 8. We are grateful to all. Third, we jointly presented themes from this book at the 2003 and 2010 annual meetings of the American Sociological Association. Savelsberg presented other parts at the Law and Society Program of New York University; the Center for the Study of Violence of the University of Sao Paulo (Brazil); Northwestern and Yale Universities’ sociology departments; Humboldt and Free Universities in Berlin; and the Universities of Washington and Erlangen-Nuremberg and at meetings of the American Sociological Association (2007), the American Society of Criminology (2007), the Law and Society Association (2006), and the Social Science History Association (2007). On these and other occasions we received valuable feedback from many, including Martin Abraham, Julia Adams, Jeff Alexander, Ron Aminzade, Hans Bertram, Liz Boyle, Wendy Espeland, Ron Eyerman, Pamela FeldmanSavelsberg, Gary Fine, David Garland, Jürgen Gerhards, Philip Gorski, David Greenberg, John Hagan, Terence Halliday, Kathy Hull, Valerie Jenness, Monika Jungbauer-Gans, Stephen Kalberg, Ross Matsueda, Karl-Ulrich Mayer, Jens Meierhenrich, Sally Merry, Elizabeth Mertz, Phyllis Moen, Thomas Scheffer, Barry Schwartz, Philip Smith, Chris Uggen, and Robin Wagner-Pacifici. Fourth, we jointly presented the first draft of the book manuscript at the Russell Sage Foundation on December 11, 2009. We received precious feedback from guests who had undertaken the labor of reading the entire first draft, or significant parts of it, including Dana Adams, Lynn Chancer, Elizabeth Cole, Jo Dixon, Wolf Heydebrand, Guillermina Jasso, Philip Smith, and Robin Wagner-Pacifici, and from members of the board of the Rose Monograph Series and its supporting staff, specifically Diana Baldermann, Diane Barthel-Bouchier, Cynthia Bogard, Louis Edgar Esparza, Michael Kimmel, Daniel Levy, Timothy Moran, Naomi Rosenthal, Michael Schwartz, and Gilda Zwerman. Coming out of this

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meeting, we were both impressed with the generosity of our critics and healthily shaken. Crucial critique and advice on the next-to-final draft of September 2010 came from two anonymous reviewers for the Russell Sage Foundation, who read and commented in great detail on the entire manuscript. We benefited greatly from comments and support that Suzanne Nichols at the Russell Sage Foundation straightforwardly provided throughout the process. April Rondeau, production editor, and Katherine Kimball, copy editor, paid careful attention to details, and their exertions improved our manuscript. Notably, this book project might not have been realized without Daniel Levy’s initiative. We thank all institutions and individuals for their contributions. Only we, of course, are responsible for any errors and flaws. Parts of chapters 6 and 8 are revised versions of an article that was previously published in volume 111 (2005) of the American Journal of Sociology. We were honored when this article was awarded the 2006 Best Article Award of the Law and Society Association and the 2007 Best Article Award of the Section on Culture of the American Sociological Association. We thank the publisher for permission to reprint this segment, albeit with revisions. We finally, and especially, thank our respective spouses, Jana Hrdinová and Pamela Feldman-Savelsberg. The encounters of the different social worlds that created us and that meet in our marriages—nation-states, religions, and ethnicities—never allow our minds to stray too far from issues of collective memory. This book is dedicated to Jana and Pamela.

Introduction How Maurice Halbwachs Died—and How We Remember Him

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NTERING one of the exhibition halls of the memorial site of the former German Buchenwald concentration camp, just outside the picturesque town of Weimar with its history of humanist thought, visitors encounter a small exhibit commemorating Maurice Halbwachs, the late French sociologist and student of Emile Durkheim. It is at this site where, as inmate 17,161, Halbwachs suffered pain and humiliation and finally, in mid-March of 1945, shortly before the liberation of the camp and the end of World War II, death. In 1944 he had dared to demand information and justice from the authorities after the brutal murder of his Jewish in-laws either by the Gestapo or by henchmen of the collaborative Vichy regime of his native France. His suffering and death, like that of millions of others in the Nazi concentration and extermination camps, was most certainly real. Yet our memory of this suffering is constructed. We learn about it through the Buchenwald display, a dedication in René König’s renowned Handbuch der empirischen Sozialforschung (König 1967), or in Lewis Coser’s introductory chapter to Halbwachs’s texts on collective memory. Coser, a former president of the American Sociological Association, was himself a refugee from Nazi Germany and a victim of Vichy France’s internment camps (Coser 1992, 6–7). Narratives and memorials provided by later and present-day actors, including scholars and government agencies, are based on such accounts, and we will never know what shape the stories might have taken under Halbwachs’s own authorship. It is through the former that Halbwachs emerges as a ghostly, haunting figure in today’s world—a theme to which we return in chapter 4. We engage Maurice Halbwachs’s scholarship on collective memory in greater detail in chapters 1 and 2. The Nazi atrocities that victimized Maurice Halbwachs were also processed in courts of law, most famously in the International Military

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Tribunal at Nuremberg, and these legal proceedings played a crucial role in documenting and memorializing the horrors of the Nazi past. Justice Robert Jackson, the American chief prosecutor at the tribunal, had hoped that they would do so, and he expressed his hope with often cited words: “Unless we write the record of this movement with clarity and precision, we cannot blame the future if in days of peace it finds incredible the accusatory generalities uttered during the war. We must establish incredible events by credible evidence” (quoted in Landsman 2005, 6–7; our emphasis). Justice Jackson was not alone in this hope, of course. President Franklin Delano Roosevelt clearly thought along similar lines. As his confidant, Judge Samuel Rosenman, noted, Roosevelt “was determined that the question of Hitler’s guilt—and the guilt of his gangsters—must not be left open to future debate. The whole nauseating matter should be spread out on a permanent record under oath by witnesses and with all the written documents” (quoted in Landsman 2005, 6). Roosevelt had come to believe that revisionist interpretations of World War I, which challenged the doctrine of Germany’s primary guilt, had contributed to isolationist tendencies in the United States that Roosevelt despised. His interest in documenting the Nazi regime’s aggression and atrocities through court proceedings, and thus preserving them for posterity, was thus not just an effort to seek accountability and to write history but also a political strategy that was shared by his World War II allies.1 Today, Jackson’s and Roosevelt’s convictions, at least overlapping with Emile Durkheim’s classical sociological ideas about the effects of legal proceedings, find renewed relevance in light of recent atrocities such as those in Rwanda, East Timor, Sudan’s South and its Darfur region, the former Yugoslavia, and Iraq and also following the end of dictatorial or autocratic regimes in East Central Europe, Asia, Africa, and Latin America. Simultaneously, and unavoidably after the rewriting of history in the post–civil rights movement era, attention has also been directed inward: How do Americans remember atrocities, not just those committed by foreign powers but also those perpetrated in the course of American history? What role did foreign and domestic trials play in establishing such memories? What are the consequences for today’s responses to grave human rights violations at home and abroad? We wrote this book as the twentieth century had recently drawn to a close. The period’s political history is in many respects Janus faced. The century witnessed multiple genocides, brutal dictators, and countless mass atrocities. The occurrence of mass killings and abuses of uncounted human beings, unfortunately, does not distinguish the last century from many previous ones—even if the context of modern states caused a qualitative change. However, as the Harvard legal scholar Martha Minow

Introduction

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(1998) keenly notes, a truly exceptional facet of the twentieth century has been the invention of legal institutions to seek some form of accountability, redress, or perhaps even reconciliation in the wake of collective violence and atrocity. During the past century democracy expanded across much of the globe, and a new vocabulary emerged around the idea of human rights. Some have even diagnosed the late twentieth and early twenty-first centuries as a “justice cascade” (Sikkink 2011). For instance, World War II and the Holocaust were followed by the Nuremberg tribunals and eventually by reparations—albeit never adequate—for some victims; the atrocities in the former Yugoslavia led to the International Criminal Tribunal for the former Yugoslavia (the ICTY); an International Criminal Tribunal was established after the Rwandan genocide; and the end of apartheid in South Africa gave way to a novel Truth and Reconciliation Commission. The decades preceding World War II witnessed the emergence of humanitarian law, codified in the Hague and Geneva Conventions. These cases, of course, represent but a sampling of injustices and legal responses in their aftermath. But they provide inspiration and material for our thoughts. Maurice Halbwachs’s suffering and that of the tens of millions of other victims of atrocities, law’s contribution to the collective memory of such suffering, and the consequences of collective memories for the control of future hate-inspired violence are the subjects of this book. Halbwachs’s ideas on collective memory, richly developed in a growing body of scholarship, guide us in the project. Our empirical examples focus primarily on American memories of atrocities committed by Americans and by others; on ways law contributed to these memories; and on paths along which memories, in turn, inspired later lawmaking and enforcement aimed at the establishment of a more peaceful world. The first two chapters of this book establish some basic principles, lessons provided by many decades of inspiring scholarship. Insights concern the nature of collective memory, the role law plays in establishing such memory, and the effects of collective memory on later stages of conflict, especially as they entail the making and enforcement of new laws. They also address the role of emergent global scripts and norms regarding human rights and, simultaneously, the role social actors play in generating and enacting such scripts. Chapter 1 especially links these discussions with ideas developed by Martha Minow about cycles of violence and the Minnesota political scientist Kathryn Sikkink on the justice cascade.2 These ideas motivate our scholarly and practical interest in ways in which cycles of violence, accelerated too often in human history, can be slowed or even brought to a halt. While our empirical analysis will have to stop at the moment at which control mechanisms are enacted and

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implemented, our theorizing reaches toward the potential consequences of such control mechanisms. The subsequent three chapters offer a set of case studies that shed empirical light on the question of how legal interventions color our memories of evil. Throughout these chapters we ask whether Jackson’s and Roosevelt’s trust in the history-writing power of law is indeed justified. Or do the limitations and the particular logic of legal proceedings distort history in ways that fail to teach us the desired lessons? Specifically, chapter 3 considers the infamous My Lai massacre committed by American soldiers during the Vietnam War. This atrocity was narrated early on by three independent sources: an Army commission, a famous journalistic account, and also—and especially important here— criminal court proceedings. A comparison of these early accounts is followed by an empirical exploration. We ask whether and how these partially competing narratives are reflected in American history textbooks and in media reporting throughout subsequent decades. How, for instance, do our history lessons teach us to remember My Lai, if at all? What do journalists have to add? What role do political interests of later days play in the memorization of My Lai? Is the presumed ritual force of law confirmed? And what might the patterns we identify say about American culture more broadly? Our findings provoke questions regarding the consequences of a resurgence in American pride in the military and American soldiers’ attitudes regarding torture and war crimes. Chapter 4 builds on arguments regarding the path dependency of collective memory. It thus asks how previous commemorations color later memories. It also examines the use of “bridging metaphors” that link My Lai to later events. Here we focus on one empirical case, the killing of many civilians in the town of Haditha during the Iraq War by U.S. military. How do different news media compare My Lai and Haditha; that is to say, how do they build bridges that connect them? Do they stress their likeness (mimetic bridging) or similarities of context (contextual bridging)? Do they use consequences of My Lai to predict the impact of the Haditha killings (prognostic bridging)? Or do they highlight differences between the old and the new (bridging challenges)? Using websites of pro-soldier movements we also ask how the legal process channels emotional energy against the killers. Did law intensify emotions, or did it restrain them by undermining critical coverage? We finally introduce the concept of “haunting” and explore the role of trials in promoting or putting an end to haunting. Chapter 5 takes us outside the United States, into the former Yugoslavia. Here, too, we seek to understand how legal narratives interact with competing accounts to reach a broader public through mediators such as news reports. At the center of this story is the late Slobodan

Introduction

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Milosevic, the former Serbian and Yugoslav president and defendant before the ICTY until his March 2006 death in custody shortly before the court could reach a verdict. Again, we analyze American media reports, beginning shortly before the outbreak of the Balkan wars until several years beyond its ending (from 1989 to 2006). We ask how journalists report about Milosevic at different stages of war and how their reporting is affected by legal proceedings. How did the ritual potency of trials work out in this case? Again, are Jackson’s old hopes that trials may document incredible events through credible evidence confirmed? Or does law distort the story of Milosevic and the Balkans? How do its narratives interact with accounts from other fields such as foreign policy and diplomacy? In chapter 6 we ask what image emerges when many processes of memory formation, like those we studied for My Lai, Haditha, and the Balkans, aggregate to form the structure of American memories of atrocities. What is the impact on the composite picture of domestic legal responses in which only low-level perpetrators are found guilty, combined with cases that did not evoke any legal response and with foreign cases in which high-ranked leaders of state crime are prosecuted? How do American memories differ from those of a country like Germany, in which atrocities, albeit of a most different—in fact, unique—quality, were processed in criminal trials, including trials against high-level perpetrators? Having used such case studies to shed light on the question of how legal proceedings affect the representations and memories of past atrocities, we then set out to ask, Why care? Why do such memories matter anyway? In chapter 7 we provide a preliminary answer. We draw on a range of the extant literature to show that collective memories have considerable consequences. Collective memories motivate social actors to take a stand in the face of grave atrocities, they inspire social movements, and—crucial for our purposes—they may mobilize the use of law as a weapon against hate and violence. Carrier groups, the use of bridging metaphors, and historical consciousness play important roles. Chapter 7 then progresses to two examinations of the effect of collective memory on law, specifically hate crime law, and its enforcement in cross-national and, within the United States, cross-jurisdictional comparisons. Chapter 8 explores how American and German differences in memory translate into distinct laws on the books and law in action. We use hate crime law as an example, a type of law that seeks to forestall hate-inspired violence. How do differences in collective memory act in combination with particularities of the institutional context in which carrier groups form and operate, of state organization, and of differential exposure to international scripts?

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While such comparison yields important insights, countries are clearly not monolithic. We thus take the core ideas from chapters 6 through 8 and, in chapter 9, apply them to a singular case in the United States. Is variation in the memory of atrocities and injustice within the United States associated with legal responses to hate-inspired crime? Here a much larger number of units allows for a statistical test of our theoretical expectations. The reader will learn what differences we found in the distribution of collective memory markers across the country, especially Holocaust memorials and streets named after Martin Luther King Jr. Such patterns open the door to several questions to which we were able to find at least preliminary answers: Do law enforcement agencies implement hate crime policies more vigorously where past episodes of bigotry and hatred are commemorated? What is the effect on practices such as police compliance with federal hate crime law and the creation of formal departments on hate crime enforcement? Do we find differences between the effect of the commemoration of foreign atrocities and that of domestic injustice? Chapter 9 provides answers to these questions. Finally, a concluding chapter 10 links our empirical findings with those of previous research on related themes. This discussion yields comparative insights, reaching far beyond the case of American collective memories and law. It indeed tells us that we must take into account the reciprocal relationship between law and collective memory of hate and atrocities when we seek to interrupt cycles of violence. With regard to American history, it speaks to the problematic effects of focusing on lowlevel actors alone in cases of perpetration committed by the government and the military of the United States.

Chapter 1 From Law to Collective Memory: Breaking Cycles of Violence?

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HIS BOOK deals with American memories of atrocities, the role law plays in their construction, and the way law itself is affected by them. We begin, however, with two stories that help situate our work and show its contemporary relevance. The first story takes us back to Europe more than two centuries ago. It illustrates some central ideas on how law, and the collective memory to which it contributes, affects cycles of violence. This reference is temporally and geographically distant, but as the great playwright Bertolt Brecht understood, insight is sometimes more easily gained from a distance. The second story involves a contemporary American debate among scholars and the public alike on the relative costs and benefits of transitional justice. This debate illustrates that our concerns should indeed be shared by all who have an interest in ending cycles of violence. It also shows that our central questions, while speaking to academic themes, are simultaneously of the highest relevance for policymaking. Interwoven with these two accounts is a brief exploration of the central theses we explore in this book, followed by a short methodological excursus.

A European Story of Law, Memory, and Cycles of Violence In 1806 Napoleon Bonaparte and his army invaded and easily defeated Prussia. The French Army subsequently attacked Russia and marched on all the way to Moscow. The outcome is well known: Napoleon and his troops were eventually defeated by the Russian military, which used innovative strategies, partly reminiscent of guerilla warfare. It drove back the Napoleonic aggression in a devastating campaign. Much of this is masterfully portrayed in Leo Tolstoy’s classic War and Peace. Prussia recovered slowly and initiated reforms, inspired by H. F. Karl vom Stein and 1

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Karl August von Hardenberg, meant to strengthen the kingdom and prevent future conquest. In fact, the 1813 battle of Leipzig brought the final victory over the French armies. Yet memories of the French occupation never faded, and indeed they had consequences.1 By the 1860s Prussia had gained substantial strength, and fifty-eight years after Napoleon’s final expulsion from its land, Prussian leaders revived memories of French aggression and declared war on France. Victory in the Franco-Prussian War of 1871 culminated in the crowning of the Prussian king as German emperor in the magnificent chateau of Versailles just outside of Paris, a moment of great humiliation for the French nation. The next period of peace lasted even fewer decades than the previous one: The year 1914, forty-four years after the Franco-Prussian War, witnessed the outbreak of World War I. The gruesome trench warfare along the French-German border is remembered as among the fiercest, deadliest, and most futile fights in the modern history of war. This outcome, too, is well known: after intervention by the American military, the Axis powers, including the German Empire, were defeated. The Kaiser fled Germany, and the empire was replaced by the Weimar Republic. The end of the war was sealed in a demeaning signing of the Versailles peace treaty by the German delegation. Its members had to pass through a phalanx of horribly wounded and disfigured French soldiers to reach the railroad car in which the ceremony took place. Not accidentally, the location was in the immediate vicinity of the Versailles palace, where the crowning of the German Emperor a good four decades earlier had deeply humiliated the French nation. In addition, the Versailles Treaty obliged the German nation to massive reparation payments, the burden of which caused great pain throughout German society. We know that the Weimar Republic was to last only fourteen years. In 1933 the Nazis took over the country and changed its political system into a fascist dictatorship. When Nazi Germany unleashed World War II with its invasion of Poland in September of 1939, the renewed warfare against France was just a short one year away. This time, as in 1871, France was thoroughly defeated, and major parts of it were occupied. On June 21, 1940, the French were forced to surrender to Adolf Hitler in the same railroad car in which the German generals had signed the Versailles Treaty just twenty-two years earlier. German engineers, in fact, demolished the walls of the museum in which the car was kept so it could be moved to the exact location where the previous surrender had occurred.2 Thus are the ways in which states work with symbols that store collective memories to humiliate, to recover, and even to rewrite history. We all know the outcome of this cruel chapter of history, which included the Holocaust and the loss of 40 million lives in the course of World War II. We also know that the war ended, like World War I, with

From Law to Collective Memory

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the defeat of the Axis powers. Only this time the reaction of the victors differed. As opposed to penalizing the entire nation with massive economic sanctions, the victors chose individuals to face criminal trials.3 The surviving leaders of the Nazi regime and of the German military were brought before a court of law, the International Military Tribunal in Nuremberg. Many of their helpers from the worlds of law, medicine, and elsewhere were tried in the subsequent Nuremberg trials. In addition, at least some of those responsible for the mass carnage as members of execution squads and staff of extermination camps were tried by German courts in the late 1950s and 1960s. Even at the time of this writing, John Demjanjuk is standing trial in Munich, accused of brutal treatment and killing in the camps. In Jerusalem, Adolf Eichmann, one of the chief organizers of the Holocaust, was tried, sentenced, and executed in 1961. Paralleling such penal action against individuals immediately after the war, massive aid was delivered through the Marshall Plan to help the German economy recover. A new constitution was created, superior to its Weimar predecessor as it promised a more stable democracy. First steps toward the building of the European Union were undertaken shortly after the end of the war. Yet the horrors of the war remained ingrained in German collective memory, retold again and again in stories, literature, art, films, commemorative speeches, and scholarship. Concurrently, the images produced by trials against perpetrators of the Holocaust and initiators of aggressive warfare began to settle in the public mind, albeit with delay. Since the end of World War II, sixty-six years of peaceful coexistence between France and Germany have become accepted as the rule rather than the exception. A long cycle of violence had been brought to an end. To be sure, many factors helped establish the current, comparatively enduring era of stability, prosperity, and peaceful coexistence. Yet it is entirely plausible that the collective memories produced by the post–World War II trials were a contributing factor. As Gary Bass notes in his acclaimed work on war crimes tribunals, “The rehabilitation of Germany after World War II is one of the great political successes of the century, turning a fascist enemy into a democratic ally; Nuremberg gains prestige as part of that terrific success [our emphasis].”4 Elsewhere, too, criminal trials against perpetrators of mass atrocities have engraved the images of horror in collective memories, impeding denial.5 Consider Argentina and the trials against the generals of the socalled Dirty War of 1976 to 1983, Chile and its trial against General Augusto Pinochet, Iraq and the trial of Saddam Hussein and his coterie. In some of these places, truth commissions supplemented trials or set the stage for them, as in Argentina.6 In yet other countries truth commissions were conducted instead of trials, as in South Africa after apartheid.

4

American Memories

In each of these cases, however, judicial or quasi-judicial institutions likely played central roles in the formation of collective memories of past atrocities and in reducing the likelihood of them being repeated. Yet the precise causal role that trials play in the construction of collective memory, not to mention their purported role in ending cycles of violence, remains conjecture more than undisputed conclusion. Indeed, the examples cited here are only suggestive. We can easily think of occasions in which collective memory of past atrocities, especially those committed by previous and new enemies, inflamed emotions and contributed to future violence. The recent history of the conflict in the Balkans provides but one example. In yet other cases, histories of atrocities were successfully glossed over, even after trials. These cases appear to be more common in situations of regime continuity, which typically are associated with the pursuit of low-level actors by the law while the leaders are left untouched. Consider, for instance, the United States. Prosecuting only low-level actors in response to atrocities has often created a public perception that frontline agents were selected as scapegoats, as our chapters on My Lai (Vietnam) and Haditha (Iraq) show. This perception has cast legitimatory doubt over those trials. Simultaneously, higher ranks and entire organizations that might have borne responsibility remained untouched by American trials, and their reputations and the memories of their deeds untainted. This may be one explanation for the fact that— according to the International Social Survey Programme—Americans’ pride in the military, always high, is today far more pronounced than that in any other institution in the United States. It is also higher than the pride any other nation invests in its military.7 In short, the effect of trials, and the memories they create, on cycles of violence warrants thorough investigation. We engage in such investigation here for a selection of cases involving the United States, although the ideas put forth in this book are of much broader historical and global relevance.

Debating Transitional Justice and the Underexplored Role of Collective Memories The function of law in slowing or ending violence, especially enduring cycles of violence, has been hotly debated in recent scholarly and public exchanges.8 One remarkable debate concerns the role of criminal justice intervention, especially but not exclusively at the international level, against perpetrators of massive human rights violations, war crimes, crimes against humanity, and genocide. Opponents of such intervention argue that the threat of sanctions by criminal courts may extend periods

From Law to Collective Memory

5

of atrocities. From this perspective, dictators and warlords are reluctant to support transitions to democracy or sign peace agreements when the threat of sanctions is looming in the background. Why hand the hangman the rope? Proponents of this critical position include scholars such as the Harvard law professor Jack Goldsmith, previously on the staff of the Justice Department during the George W. Bush administration.9 Such writers often rely on case studies, impressively at times, to make their point. They argue, for example, that some of the worst atrocities of the Balkan wars occurred after the International Criminal Tribunal for the former Yugoslavia (ICTY) had been instituted. Their assertions are often supported by conservative media. Consider reactions by the Wall Street Journal to the arrest warrant issued by the International Criminal Court (ICC) against President Omar al-Bashir of Sudan for war crimes and crimes against humanity committed in the Darfur region, as expressed in a July 16, 2008, editorial: The International Criminal Court’s decision to seek an arrest warrant for Sudanese president Omar Bashir is being hailed in the usual places as a landmark in the effort to stop the bloodshed in Darfur. In fact, the indictment is of a piece with the same toothless moral posturing that has already prolonged Darfur’s misery for more than four years. . . . The U.N. Security Council referred Darfur to the International Criminal Court in 2005, both to appear to be doing something and as a way to embarrass the Bush Administration. . . . Three years and 200,000 deaths later, the ICC prosecutor now claims to have solid evidence that Mr. Bashir has always been in full control of the genocidal apparatus in Darfur. To whom, outside the U.N. itself, can this possibly come as news? (A16)

This attack on the ICC is specified in another op-ed piece that appeared in the same paper just one week later, on July 23, written by David B. Rivkin Jr. and Lee A. Casey, both Washington attorneys who had served in the Justice Department under Presidents Ronald Reagan and George H. W. Bush: Luis Moreno-Ocampo, the prosecutor for the International Criminal Court . . . , has just made a mistake that will make it harder to help people suffering in Darfur. Last week, he filed charges against Sudanese President Omar al-Bashir. There is no doubt that terrible crimes have been committed in Darfur. But the international community has been unwilling to use military force to stop the atrocities, and this indictment takes Darfur’s second-best hope for peace—a diplomatic settlement—off of the table. . . . By acting while Mr. Bashir was still in office, with no prospect of forcing him out, the ICC prosecutor has just made Darfur’s tragedy harder to resolve. (A15)

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American Memories

Critics of transitional justice, including international courts, however, face considerable opposition. Their case histories may be challenged by counterexamples. Consider the case of trials against the Argentinean generals after the Dirty War of the 1970s. These trials were followed by considerable stabilization of democracy in Argentina. Critics of legal intervention also cannot say for certain how the war in the Balkans would have unfolded had there not been an ICTY. Nor are they prepared to account for the democratization and nascent integration into the European Union by most of Yugoslavia’s successor countries, steps that would have been much more difficult had these countries not faced considerable pressure to rid themselves of (or at least to hide) leading perpetrators. Even during the war, the Bosnian-Serb military felt it had to take precautions in its communications, indicating at least some concern about later prosecutions by the ICTY. This was well illustrated by military intercepts in which officers’ references to “3500 parcels that I have to distribute” actually meant men and boys from the town of Srebrenica who were to be slaughtered by the thousands.10 Those same critics are now also being confronted with additional empirical evidence that goes far beyond the anecdotal case study approach commonly used to support their claims. Based on a systematic and innovative study of some two hundred transitions from dictatorship to democracy and from civil war to peace, the Minnesota political scientist Kathryn Sikkink and her collaborators demonstrate that legal intervention is most commonly associated with improved human rights and democracy records.11 Their analyses show clear statistical associations between the holding of trials, especially in combination with truth commissions, and posttransition indicators for democracy and human rights.12 These, of course, are probabilistic relationships. What typically holds may well fail in some specific cases. Wherever warmongers and those involved in grave human rights violations hold on to power, transitional justice mechanisms—especially external interventions—are at least at risk of failing. Further challenges derive from the lack of effective law enforcement by the international community. Yet Sikkink and her colleagues argue convincingly that the potential benefits of legal intervention in the international realm today are strong in part because such intervention fills a total void. It moderates a situation in which complete impunity was the rule. While Sikkink and her collaborators offer the strongest statistical evidence to date in support of criminal trials against perpetrators of humanitarian and human rights crimes, we are concerned with two crucial questions and specifications left unanswered by this new body of work. First, where leaders are successfully prosecuted, and where the probabilistic relationship between transitional justice and improved human rights and democracy records holds, what is the nature of the causal

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mechanism? Why do trials keep successor regimes from following in the bloody footsteps of their predecessors? We briefly put this latter question in context, as it motivates a principal objective of this book: to assess when and how law affects collective memory and whether memory, in turn, is implicated in fomenting legal changes that might further reduce violence. Assuming that tribunals indeed minimize violence after atrocities, we recognize that multiple factors may account for this association. The Princeton University professor of politics and international affairs Gary Bass, for instance, identifies five “benefits” of tribunals after massive human rights violations.13 The first is rather straightforward: guilty parties are purged from leadership positions. The second and third— deterrence of future war criminals and the rehabilitation of former enemy countries (for example, Germany after Nuremberg)—align with traditional goals of criminal law, albeit on a much grander scale in this case. Fourth, Bass notes, trials have the capacity to place blame on individuals rather than entire ethnic groups, thereby quelling intergroup conflict. The final benefit is the establishment of “the truth about wartime atrocities” (Bass 2000, 286). This last benefit speaks to the mechanism that is at the heart of this book. This is a cultural process, the delegitimizing function of trials. Bass (2000, 302) indeed emphasizes the importance of “debunking” and of getting the historical record on paper.14 Thus, and much in line with the quotations by President Roosevelt and Justice Jackson presented in the introduction to this book, criminal proceedings may engrave in a group’s collective memory the horrors of the past and thereby reduce the chances of their being repeated.15 Even rational actors, who are ostensibly receptive to the threat of sanctions, would base their reasoning on their knowledge of past horrors and on the memory of trials and resulting punishments. In other words, the collective memory function of criminal law is crucial when making rational choice assumptions. Political scientists often imagine rational actors, including political and military leaders and their frontline agents, as facing decision trees, each of whose branches represents a possible strategy or course of action. By delegitimizing grave human rights violations as one option, court trials have at least the potential of severing the atrocities-based branch of decision trees. Second, however, and here we must return to the situation in which regime change does not occur, how effective can penal law be at forestalling future human rights and humanitarian crimes when the law is only enforced against the lowest ranks in the state or military hierarchy? Again, consider America’s situation and its wars in Korea and Vietnam, which involved massive humanitarian law and human rights violations, as did the more recent wars and occupations in Iraq and Afghanistan.

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Those punished tended to be low-level soldiers such as Private Lynndie England, the daughter of a working-class family from an impoverished region of West Virginia. Arguments that members of the U.S. administration under President George W. Bush should be prosecuted for crimes committed through the conduct of the most recent wars, for which they bore final responsibility, did not lead anywhere.16 The Barack Obama administration has shown no interest in pursuing such cases—just like the Gerald Ford administration, following the Lyndon Johnson and Richard Nixon eras, showed no willingness to unleash the Justice Department against potentially criminal conduct perpetrated during the Vietnam War. We address this issue more explicitly in chapter 3.

Atrocities, Law, and Collective Memory: Questions and Theses Here, then, are some lessons suggested by the introductory stories and associated observations, condensed for the moment into a couple of simple theses. While we work from the assumption that legal institutions can and often do play powerful roles in ending cycles of mass violence, we are concerned here with empirical specifications of this broad thesis and with the mechanisms through which law works. And while we acknowledge the potential role that deterrence and the rearrangement of leadership following guilty verdicts play, we propose that alongside these factors sits an important but heretofore underemphasized cultural mechanism, collective memory, serving as a crucial mediating force when legal intervention forestalls atrocity or interrupts cycles of violence. To state it more formally we advance Thesis 1: Once established, through trials or other mechanisms, collective memory may counteract violence directly, by delegitimizing grave human rights violations, or indirectly, by evoking new control responses. Figure 1.1 illustrates this causal path. In other words, we argue that collective memory is likely to be a central mechanism in the black box between judicial intervention and improved democracy and human rights records. Where legal proceedings succeed in producing such collective memories, reductions of violence are likely. Where they fail, more violence is to be expected. While the empirical chapters of this book do not directly test the first part of this thesis on the association between collective memory and violence, we make use of novel data to examine whether collective memories, once established, contribute to new laws and law enforcement efforts that seek to combat atrocities and intergroup violence. Our Thesis 1, of course, implies and assumes much, and before proceeding we explicate these assumptions and add further specifications. One basic assumption is that legal proceedings, including criminal trials,

From Law to Collective Memory Figure 1.1

9

Collective Memory as an Intervening Factor Between Law and Violence New laws and control responses

Trials

Collective memory

Reduced violence

Source: Authors’ figure.

are well suited to shape collective memory of past atrocities. As Hannah Arendt wrote after the Eichmann trial, “Eighteen years after the war, our knowledge of the immense archival material of the Nazi regime rests to a large extent on the selection made for prosecution” (Arendt 1963, 201). To wit, but for the trial, knowledge of events that underlie and substantiate Jewish memory of the Holocaust may have been quite different, with clear implications for collective memory. Yet we expect trials to affect collective memory in particular ways. This leads us to Thesis 2: The narrative history produced by trials is unique in that it reflects the institutional logic of the legal sphere. For example, criminal trials focus on individual perpetrators rather than on larger social forces. Moreover, evidentiary rules of trials are quite specific: evidence that may well be fair play in historical investigations is often excluded from legal proceedings. The claim of a specific institutional logic, on its own, should merit much investigation. Previous research on “accepted memory” of atrocity in the wake of selected legal and quasi-legal proceedings speaks to this issue, but many questions remain unanswered.17 We make use of innovative data in this book to examine more thoroughly whether and how trials become not only venues for determining justice but contributors to historical memory as well. The reader will have realized by now that our argument rests on the notion of collective memory, by which we mean the ways in which collectivities share and mutually acknowledge memories of the past (a more precise definition is to follow soon). Much classic and contemporary research has explored properties of collective memory. Here we highlight (and explore in greater depth in chapter 2) a few key features from that literature, as they inform our theses. First, collective memories are socially constructed. This does not mean, of course, that the past did not happen. People did suffer pain, they cried, screamed, resigned, and many

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died. All of this is all too real. Yet the way we know about their suffering is never direct. It is always mediated and filtered. This premise, which is a staple of collective memory scholarship, comes with a few corollaries, established by a rich and growing body of literature. For one, the construction of collective memory is motivated by material and ideal interests of present-day actors. This argument has become known as “the presentist approach.” Furthermore, attempts at shaping and redrafting collective memory must take previous memories into account. We refer to this phenomenon as the path dependency of collective memory. Adding to this, multiple actors always offer competing versions of the past, and hence another feature of collective memory worth emphasizing is that the construction of collective memory is beset by conflict. Finally, as social groups always reconstitute themselves and as their ideal and material interests shift over time, we have to acknowledge a simple fact: collective memory, and by extension its consequence, is always in flux.18 To reiterate, historical experience and public and academic debate suggest or imply that law and collective memory matter for cycles of violence. History may well be written through trials, and the collective memory this historical record documents can motivate and shape whether and how states respond to intergroup violence and atrocities. Yet much more empirical work is needed if we want to more safely answer the two questions at hand: First, do trials in fact affect historical narratives? And, second, does memory indeed influence state responses to conflict?

Excursus: A Note on Cases, Method, and Logic of Inquiry As we consider the world of atrocities and grave human rights violations, the role of judicial intervention, and the way atrocities are remembered, we face a universe of cases that is daunting in both size and scope. Cases from relatively recent history include the slave trade and the slavery system in the United States, atrocities committed against Native Americans, the German genocide against the Herero in today’s Namibia in the early twentieth century, the Armenian genocide in the early stages of World War I, and the Stalinist purges in the Soviet Union.19 Historically, most atrocities never resulted in any legal response. In fact, for much of human history perpetrators of atrocities were celebrated as heroes.20 Where courts responded, and they have done so with increasing frequency in recent history, we encounter cases in which domestic courts acted and other cases in which foreign or international courts and tribunals responded to atrocities.21 Cases of domestic legal responses are exempli-

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fied by My Lai, Haditha, and Abu Ghraib (all covered in this volume) but also by the Auschwitz trial in Frankfurt, Germany; the Iraqi trials against Saddam Hussein and his henchmen; and the trials in Argentina and Chile against these countries’ former military rulers. Then there are foreign trials like the famous proceedings before the Jerusalem court against Adolf Eichmann, the organizer of the transports into the Nazi extermination camps, and finally international trials such as the International Military Tribunal at Nuremberg and the ICTY. Each of these types of cases may have specific consequences for the formation of collective memory and for altering risks of subsequent violence. The range of possible outcomes is further multiplied as the context of cases also varies. Some trials are held under conditions of regime continuity and others in the context of regime change. Among the latter we may distinguish between trials after an internal overthrow of regimes (Argentina) and others after defeat and occupation by foreign powers (Germany). Trials under conditions of regime continuity are most likely to be limited to proceedings against actors of relatively low rank. All of these specifics of cases and context are likely to create different outcomes. In selecting cases for analysis in this book we had to make a number of decisions. First, we decided to focus on cases in which trials occurred. Disregarding atrocities that did not lead to trials means that we cannot speak to the likelihood that legal responses will occur. Second, we focus on American memories of atrocities. We cover American trials that were held under conditions of regime continuity and, as we would expect, involved proceedings that were directed against relatively low-ranking frontline agents alone. Yet we expand the analytic range by also considering the case of American memories of foreign perpetrators of the highest levels. The latter were tried after regime change, as exemplified by the case of former president Slobodan Milosevic and his prosecution by the ICTY. In addition, in chapter 6 we take a look at German memories in comparison with those in America. We think there are good reasons to focus on American cases. First, the United States is a large country, and American collective memories shape the minds and fates of some 300 million people inside its borders. Second, the United States plays a particularly powerful role in world affairs. Hence, how the United States conducts its business has ramifications far beyond its national borders. Third, collective memories that affect America’s foreign, military, and economic policies have massive consequences for many others around the globe. Finally, memories are not isolated, nor is the invocation of law in cases of human rights violations just a national affair. Daniel Levy from the State University of New York at Stony Brook, in his recent and most innovative work, discusses “recursive

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cosmopolitanism.” He illustrates, for the case of Argentina, how in the late stages of the military dictatorship local situations were addressed with recourse to global prescriptions, while local practices simultaneously inspired international institutions. Might what applies to a country at the global periphery not also be valid for a powerful country like the United States, with its considerable political, legal, and cultural reach?22 Yet we are mindful that lessons learned from the U.S. experience cannot necessarily be generalized. Here we deal with a long-established democracy as opposed to many autocracies around the globe. Information can be produced and disseminated relatively freely. Furthermore, as a very powerful country in the world of international relations, the United States is less susceptible than others to outside influences. This includes potential pressures to hold high-level perpetrators legally responsible and to subscribe and respond to global collective memories that may involve critical notes on America. The United States simply does not depend on such legitimatory exercises, including the advancement of criminal justice proceedings against violators of human rights. Chapter 6, which compares the United States with Germany, a country much more dependent on world opinion for a number of reasons, shows that this factor matters greatly for the formation of collective memory. At the same time, the United States is capable of launching trials, including international trials, where it sees fit. Its recent central role in the building and operation of international criminal tribunals for the former Yugoslavia and for Rwanda illustrates this point. The United States thereby plays a central role in the formation of collective memories in distant lands. The analytic space within which we locate the United States is thus demarked by several dimensions. First, with regard to types of trials, we distinguish between no trials and domestic trials, on one hand, and international tribunals, on the other. Our case studies address American memories of domestic perpetrations processed in American courts and of foreign perpetrations processed in international tribunals. A second important dimension relates to conditions of regime continuity, under which only low-level perpetrators are typically prosecuted, versus cases of regime change, in which high-level offenders are more apt to face criminal charges. Table 1.1 lays out these dimensions, indicates where the cases in this book fit in, and presents other examples of cases not discussed here. The concluding chapter (chapter 10) places these cases in a broader universe along the dimensions spelled out in this chapter. In chapter 10 we also consider how lessons learned in the ensuing chapters have implications beyond the American experience. Finally, what is the nature of our evidence as we analyze these selected cases? Each empirical chapter is guided by the extended case method.23 This method uses specific cases to investigate how broader

My Lai, Haditha French collaborator trials

Regime Continuity

Saddam Hussein Frankfurt Auschwitz trial

Regime Change

ICC (Sudan/Darfur) ICTY (early)

Regime Continuity

IMT, ICTY (late) IMT

Regime Change

Foreign and International

Type of Trial or Court and Regime Status Domestic

Source: Authors’ compilation. Note: Entries in bold = cases for explicit study in this book; entries in italics = cases addressed in this book. “Herero” refers to the German genocide against the Herero and Namaqua peoples in today’s Namibia from 1904 to 1907. “Frankfurt Auschwitz trial” refers to the trials from 1963 to 1965 of staff of the Auschwitz concentration and extermination camp. “ICC (Sudan/Darfur)” refers to prosecutions of President Omar al-Bashir of Sudan and others before the International Criminal Court. ICC = International Criminal Court; IMT = International Military Tribunal; ICTY = International Criminal Tribunal for the former Yugoslavia.

Slavery Herero

None

Dimensions and Examples of Cases

Locus of Collective Memory In the United States In other countries

Table 1.1

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theoretical assumptions, in this instance ideas concerning links between law and collective memory, are supported by those specific cases. Each case study may find that its patterns support initial theoretical expectations or, alternatively, that some of the expectations are challenged by the empirical particularities identified. Such challenges then lead to suggestions on how the theory has to be modified or specified to cover the particular case under examination. In this volume we make use of multiple case studies, thus enabling us to examine the links between law and collective memory of atrocities from multiple angles. After each case study we summarize what we have learned with regard to general theoretical ideas about law and collective memory while simultaneously linking new insights to previously discussed cases. Given the number and selection of cases, we obviously cannot provide absolute proof of our theoretical argument. Yet we point to important patterns and commonalities that move us toward a broader and more differentiated theory of atrocities, law, and collective memory. We use our concluding chapter to place the lessons learned from our empirical cases in a larger universe. This allows us to accumulate our insights and provide a platform for future research on this crucial area of inquiry.

Chapter 2 What the Literature Tells Us, and Uncharted Terrain

A

preceding pages have shown, collective memory plays a large part in, and is in turn shaped by, the legal response to atrocities. But what exactly do we mean by collective memory? How is it created, and what are its features? How do legal proceedings contribute to shaping collective memory? Through what mechanisms may collective memory, at least under some circumstances, stall future violence? We first answer these questions based on ideas put forth in extant work. This paves the way for us to add our own insights into law’s contributions to collective memory and its potential relevance for cycles of violence in the subsequent chapters. S THE

Collective Memory and Cultural Trauma: The Concepts Collective memory is a term coined in Maurice Halbwachs’s classic work (1992). It refers to knowledge about the past that is shared, mutually acknowledged, and reinforced by a collectivity—from small informal groups to formal organizations to nation-states and global communities.1 Tools include rituals such as Memorial Day or Martin Luther King Day commemorations in the United States and their equivalents elsewhere, as well as symbols such as flags, plaques, and medals in all countries. It is these mechanisms on which the Durkheimian school focused when its followers, most noteworthy Halbwachs, addressed the issue of collective memory. Other tools through which collective memory is stored and communicated include biography and historiography, of central concern to Halbwachs’s Hungarian-German colleague Karl Mannheim.2 Here we are primarily concerned with a specific kind of collective memory, that of horrific pasts and calamitous events. Their recollection is best captured in the more recent concept of cultural trauma.3 The Berkeley sociologist and psychoanalyst Neil Smelser (2004, 44) defines cultural trauma as “a memory accepted and publicly given credence by a 15

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relevant membership group and evoking an event or situation that is (a) laden with negative affect, (b) represented as indelible, and (c) regarded as threatening a society’s existence or violating one or more of its cultural presuppositions.” The first part of this definition closely resembles that of collective memory, while the following two specifications describe the kinds of collective memories that constitute cultural trauma. Jeffrey Alexander (2004b, 9), the head of Yale’s Center for Cultural Sociology, adds that cultural trauma is anchored in Durkheim’s classical idea of “religious imagination.”4 Such imagination, he notes, forms “inchoate experiences, through association, condensation, and aesthetic creation, into some specific shape.” In other words, what once was diffuse and chaotic in the minds of those who were exposed to horrific events begins to take shape, to become focused and organized. It is only after such transformation that groups are in the position to communicate effectively about terrifying experiences, potentially sharing them with others who were not directly involved. In line with Smelser’s definition, one of the defining qualities of cultural trauma, in contrast to individual trauma, is its communicability. The contours of collective memory, and by implication cultural trauma, sharpen when juxtaposed against neighboring concepts, notably individual memory and history, and when the distinction is made, within collective memory, between autobiographical and historical memory. Our effort is not to try the reader’s patience with this exercise in terminological clarification; rather, we see it as instructive and beneficial for following our arguments in subsequent chapters. The study of individual memory pays significant attention to the cognitive aspects of retention and recollection. Psychologists, for instance, sometimes study how information is processed, where it is stored, and how accurately we recall events that we observed in the past, such as witnessing a crime.5 This conceptualization views memory as the property of individuals. Collective memory, by contrast, belongs to groups in that “it is supra-individual, and individual memory is conceived in relation to a group, be this geographical, positional, ideological, political or generationally based” (Eyerman 2001, 6). Moreover, the study of collective memory examines not simply what people might recall of a nation’s or community’s past; it also entails the subjective meaning attributed to past events.6 Commemorations and monuments, for instance, are often windows into a society’s collective memory. Commemorations, as tangible representations of collective memory, might indeed be thought of as “the lifting from the historical record of events that best symbolize society’s ideals” (Schwartz 2009, 132). Within collective memory we distinguish between autobiographical and historical memory. Autobiographical memory refers to events that actors

What the Literature Tells Us

17

personally experienced in the past and to which they often assign significant meaning.7 Those of us alive on September 11, 2001, will undoubtedly recall the terrorist attacks on New York City and Washington, D.C. Few of us were on site, and our knowledge of the event is thus mediated, but we will remember, commemorate, and share stories of where we were at the time and how we heard about the attacks. Over time, as we process our specific recollection and interpretation collectively, autobiographical memory may even change. Yet it is arguably the most personally meaningful memory, especially if it refers to events that occurred during our adolescence.8 Collective memory is broader in that it incorporates historical memory—the recollection of events that we did not experience directly. We learn of these events and assign meaning to them only through historical records (for example, high school textbooks covering the Vietnam War, for those born after the 1970s), media accounts (the “Eyes on the Prize” TV series on the civil rights movement, for post-1960s cohorts), commemorative occasions (Independence Day in the United States, for all Americans), or stories told by elders (the Emmett Till murder, for many African Americans).9 Halbwachs stressed that historical memory is particularly prone to social construction. Events it evokes are especially filtered through social institutions such as the media, political bodies, and, as we argue in this book, law. Finally, we distinguish between collective memory and history. As Ron Eyerman (2001, 7–8) notes, “History, especially as a profession and academic discipline, aims at something wider, more objective and universal than group memory.” According to Barry Schwartz, who may well be thought of as the father of American collective memory research, history tends to be inclusive of events and all aspects of past events; it involves the chronicling of the past. Collective memories of the past, by contrast, are more selective and arguably more malleable. They generally refer to key symbolic events that tell us something about society’s consciousness and ideals. Quoting Schwartz (2009, 132) again, “History informs; commemoration inspires and motivates.” We are cautious, though, not to overstretch this distinction. History also provides reconstructions of the past through particular disciplinary tools that aim at objective and universal information about the past, but tools that nevertheless select and cast the past in the specific vocabulary of the present. To be sure, different types and levels of memory are not independent of one another. After contrasting “collected memories,” as measured by survey researchers who aggregate memories of individual respondents, and “collective memories,” entailed in mythology, tradition, heritage, and all symbolic systems, language most prominent among them, the University of Virginia sociologist Jeffrey Olick (1999a, 346), a leading theorist of collective memory, concludes that “the real point is to open

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our thinking about the variety of mnemonic processes, practices, and outcomes and about their interrelations. . . . There is no individual memory without social experience nor is there any collective memory without individuals participating in social life.”10

Fundamental Features of Collective Memory: Halbwachs’s Presentist Starting Point Despite such complexities, Halbwachs’s conceptualization of collective memory was novel in that it established a unique area of inquiry in which sociologists could contribute to the study of memory in a manner that clearly differed from psychology and history. We have already noted that his ideas built on the innovative thoughts of his teacher, Emile Durkheim.11 Yet Halbwachs also distanced himself from his teacher. He maintained and sought to show that our understanding of the past is influenced by present-day interest. Barry Schwartz has famously labeled this perspective “presentist,” a concept to which we have already referred.12 This approach is well demonstrated in fascinating work by the Northwestern sociologist Gary Fine on reputations, the memory of famous or infamous individuals.13 In a particularly impressive illustration, Fine shows for the case of the former U.S. president Warren Harding that the memory of past presidents is not (just) a reflection of these actors’ successes and failures. Instead, it is affected by the position and interest of later, and often competing, reputational entrepreneurs. Specifically, Fine judges Harding’s record to be respectable in many ways. Yet, different from John F. Kennedy or Ronald Reagan, for example, Harding lacked influential followers who survived him and would have had an interest in preserving, and in fact celebrating, his memory. Halbwachs’s scholarship, without doubt, set the tone for a growing and fascinating collective memory literature, and scholarly engagement of this theme has intensified in recent years. For instance, a 2009 online search in the quite comprehensive search index Sociological Abstracts shows 255 hits with both the terms collective and memory in the title, 143 of which appeared during the past decade (2000 to 2009). Scholarship that traces its roots back to Halbwachs touches on a variety of themes such as World War II and the Holocaust (Olick and Levy 1997; Olick 2005; Alexander 2004a; Giesen 2004a, 2004b), the Vietnam War (Wagner-Pacifici and Schwartz 1991), the civil rights movement (Griffin and Bollen 2009), threats to human reproduction (Feldman-Savelsberg, Ndonko, and Yang 2005), the repression of gay people and their resistance (Armstrong and Crage 2006), and the assassination of Yitzhak Rabin (Vinitzky-Seroussi

What the Literature Tells Us

19

2002). Nearly all of this research cites Halbwachs, and some of it indeed supports Halbwachs’s presentist claim.

Path Dependency of Collective Memory Despite such support for his presentist ideas, Halbwachs is sometimes accused of having been an excessive presentist. He viewed, it is argued, depictions and accounts of the past as largely, if not entirely, reflecting the interests of present-day actors and institutions. Current circumstances then determine both what we as a collectivity choose to remember and the meaning attributed to past events. To wit, the present determines the past. As a trite but perhaps illustrative hypothetical, we might envision Halbwachs frowning at George Santayana’s famous words, “Those who cannot remember the past are condemned to repeat it.” Halbwachs might have chimed in by adding, “Actually, those who repeated the past simply chose not to remember it.” Yet recent empirical scholarship partially challenges this extreme presentist orientation. It suggests that collective memory must involve some measure of continuity with earlier memories, as Barry Schwartz has made clear in his work on commemorations in the U.S. Capitol and the memory of Abraham Lincoln.14 We might then say that collective memory is also dependent on previous ways of remembering history. Particularly acute illustrations of this point are provided by Jeffrey Olick and his collaborators.15 For example, examining the history of German May 8 commemorations (the day Germany capitulated at the end of World War II in 1945) between the 1950s and the 1990s, they demonstrate that the speeches always referred back to commemorative contents of the preceding decade. Political discourse about past events, such as World War II or the Holocaust, thus reflects not only present-day interests and powerful constituencies, as Halbwachs might have suggested, but also previous memories and sensitivities associated with them. Such constraints even affect foreign leaders. President Ronald Reagan, for example, visiting Germany on the occasion of the fortieth anniversary of Victory in Europe Day, had decided not to visit a concentration camp. Simultaneously, he was set to attend a ceremony at a military cemetery where members of Nazi units were buried alongside soldiers of the general German military (a fact Reagan may not have been aware of). President Reagan claimed that it was time to release young Germans from their feelings of guilt and let them move on with their lives. Yet outraged reactions forced Reagan to compromise by laying a wreath at a concentration camp site. In short, the U.S. president had to yield to the established definition of the historical past. He, like politicians generally, was tied to

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preceding memories. He had to accept that the commemoration of the past is not plain presentist but path dependent.16 We explicitly make note of this point, and Olick’s work in particular, because it directly informs an idea introduced in this book. In chapter 4, for instance, we discuss the concept of applied commemorations— commemorations not for the declared purpose of addressing historical events but commemorations in the context of decisionmaking debates that implicate historic events. Examples include legislative sessions on hate crime and restrictions on free speech. Such debates will involve legal issues such as due process or chances of enforcement. But they will also refer to and recount the history of Nazi crimes to justify restrictions of rights in light of that history. At times, actors with presentist orientations not only are caught up by past memories and commemorations but also actively refer to them, often using the past as a metaphor for the present. Alexander calls such references “bridging metaphors.”17 Thus establishing the likeness of past events that carry moral or legal obligations to present ones, they invoke those commitments for the present. A most famous example is the depiction on the front pages of almost all major newspapers of an emaciated prisoner from the Trnopolje camp in Bosnia after its liberation. The photograph so clearly evoked iconic images of the Holocaust taken by Soviet or American military when they liberated the Nazi camps that the pressure to intervene increased massively. Chapters 4 and 7 make reference to such bridging metaphors and explore some conditions under which they are more or less likely to succeed.18 Again, past memories and commemorations call on later carriers and mnemonic activists, no matter their present interests, to be heard. This is the path dependency of collective memory. And, at times new speakers actively recall earlier images of the past in order to build a bridge from them to the present.

Struggles over Collective Memory In addition to his presentism argument, Halbwachs also distances himself from his teacher Emile Durkheim in that he more clearly recognizes the separate lives of distinct, often conflicting, groups within societies, each with its own collective memory. In his “Social Frameworks of Memory” (Halbwachs 1992, 35–189), for example, he addresses the specific memories of families, religious groups, social classes, and occupational groups.19 This insight is taken for granted today and specified in manifold studies. An astute example for the case of American memories is provided

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by Howard Schuman and Jacqueline Scott, who find, through a largescale survey, that Americans differ from one another in their memories of important historical events.20 Older cohorts tend more to think of the Great Depression than younger ones. African Americans are more likely than whites to include the civil rights movement as one of the most important events; women, more often than men, think of the women’s movement. Even where different cohorts remember the same event, they remember it in different ways. Americans of earlier cohorts, when thinking of World War II, remember comrades they may have lost or the lines they had to endure at home to buy groceries; younger Americans, instead, might think of the war as America’s great contribution to democracy. Furthermore, more recent research shows that young Americans are more likely than older ones to liken the Iraq War to World War II rather than to the Vietnam War. The same applies to Republicans compared with Democrats.21 Where groups do not just differ but are in conflict with one another, they may also debate the memories that legitimize and back up their claims; they engage in mnemonic struggles.22 In Germany, for example, the 1990s witnessed the so-called Historikerstreit, a massive dispute between opposing camps of historians about the Nazi past. While neither side denied the horrors committed under the Nazi regime, conservative historians sought to interpret some of the mass killings as inventions of the Stalinist regime, seemingly to relativize Germany’s guilt. Mnemonic struggles are also not alien to Americans, of course. Here efforts of the heritage movement of the past two decades have begun to challenge a sanitized view of American history that may repress the history of slavery and Jim Crow.23 At the same time, African American history museums in many cities with influential black communities challenge the depiction of blacks presented on the Washington Mall, which provides little if any room for memories of the terror experienced by the ancestors of today’s African Americans.24 When finally, in 2004, a museum was opened to honor the history of Native Americans, the museum was heavily criticized for neglecting the story of the near annihilation the indigenous American peoples had suffered. Consider also the controversy of 1993 to 1995 around the exhibit of the Enola Gay, the World War II B-29 bomber that dropped the atomic bomb over Hiroshima. Smithsonian curators at the National Air and Space Museum sought a critical display, but they were confronted by veterans and members of Congress who argued that the Smithsonian should use this exhibit to celebrate the end of the war.25 One final example will suffice: the massive debate about the 1992 Christopher Columbus exhibit, commemorating the five hundredth anniversary of his “discovery” of America, at the National Museum of American History.26 The

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following paragraph from an article in the Los Angeles Times provides a fine illustration. The first salvo in the war of cultural symbolism was fired in 1986 with the establishment of the Christopher Columbus Quincentenary Jubilee Commission, the official U.S. body commemorating the explorer’s landing on the continent. The U.S. and Spanish governments, along with national and international corporations, joined forces in a grand-scale marketing push. But if you talk to the formidable forces allied in challenging the traditional take on Columbus—including an array of artistic, cultural and activist groups, individuals and newly ascendant ethnic and sexual-orientation communities—the trouble really started 500 years ago. While the pro-Columbus camp (and the overwhelming bulk of Western curricular thought) sees Columbus as a hero, the anti-Columbus forces consider him an invading slave trader and mass murderer. The mainstreamers may have been first out of the gate, but in light of the flurry of arts activity over the past year, it is the multicultural arts community and the counter-quincentenarists who can make the stronger claim to victory. (Jan Breslauer, “Happy Quincentennial, Christopher Columbus!” Los Angeles Times, October 11, 1992, 5)

The outcome of mnemonic struggles often leads to shifts in collective memories, as many debates about the shape of American history textbooks have shown. Schwartz and Schuman recently demonstrated this impressively for the case of changing collective memories of President Lincoln in the wake of the civil rights movement, memories that increasingly define him as the abolitionist alone, at the expense of competing images of Lincoln as a pioneer, a common man of the people, and as the president who held the Union together.27 This is a crucial point familiar to anyone working in this field: Collective memory is not only divided across societal groups and subject to mnemonic struggles, it is also always in flux. Today’s collective memories differ distinctly from yesterday’s.28

Law’s Production of Collective Memory— and Its Limits The central concern of this book, of course, is one particular mechanism through which collective memory may be established or shaped: the proceedings of law. This area of study is badly wanting, as a brief look at different search indexes shows. Only four entries can be found when we enter collective, memory, and law as combined search terms for article titles in the comprehensive Sociological Abstracts search index (as of late 2009). The number increases to twenty entries when we search article abstracts.

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A 2006 search in CAS Worldwide Political Science Abstracts, using the same three terms as combined search terms, resulted in zero hits for titles and eleven for abstracts. A search of Criminal Justice Abstracts yielded zero entries for titles and two for abstracts.29 Yet legal scholars provide inspiration, especially in work on cycles of violence and transitional justice. Harvard’s Martha Minow (1998, 1), for example, notes in her treatise on the choices facing societies in the aftermath of mass violence, “A most appalling goal of the genocides, the massacres, systematic rapes, and tortures has been the destruction of the remembrance of individuals as well as their lives and dignity.” Minow adds that some survivors have turned to legal institutions not only to seek justice but also to tell the story of “what happened,” to chronicle horrific events for the annals of history and ultimately to shape the collective memory of a society’s past. Law, however, may be used not only by survivors to make sure that their suffering will not be forgotten. It has also been used by rulers for quite different purposes, as Mark Osiel (1997, 6) argues in an influential jurisprudential book on links between law and collective memory: “In the last half century, criminal law has increasingly been used in several societies with a view of teaching a particular interpretation of the country’s history, one expected to have a salubrious impact on its solidarity.” Here, obviously, we sense a critical note: that law may produce not just memories that serve the interests of victims but other memories, too, in the service of “wider society.” Nevertheless, Minow and Osiel agree that the study of atrocities and law has become deeply entwined with the issue of memory. Despite the shortage of current sociological literature on links between law and collective memory, Minow’s and Osiel’s themes reflect crucial sociological discussions. From the perspective of classical Durkheimian ideas, for example, law involves highly effective rituals that are suited, at least in principle, to evoke collective effervescence and to lift the court’s decision to a level of awareness that helps consolidate the collective conscience and heighten the awareness of social and legal norms.30 Trials can indeed be considered rituals. They share central features of other social practices that we are more accustomed to recognize as rituals, such as religious services; they direct the attention of collectivities toward the same object; and they further ensure that all participants are mutually aware of this common focus, while simultaneously creating a common mood or emotion. Randall Collins, the president of the American Sociological Association at the time of this writing, has previously applied this notion to scholarship, where rituals, such as major lectures, seek to sanctify the truth.31 In the case of trials, the sacred good at stake is justice, and distinctions must be achieved between what is legally right and wrong, lawful and lawless,

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or law abiding and law breaking. Trials may thereby contribute to the production of what Jeffrey Alexander, in his discussion of cultural trauma, calls “sacred evil,” the recognition of social facts as a specific kind of evil.32 This is an evil that is surrounded by prohibitions, and it can be challenged only at great cost. Denial of the Holocaust, for example, will lead to social exclusion and in fact to criminal punishment in many countries. The Holocaust obviously is an example, maybe the most prominent example, of a sacred evil. The writing of history is thus added as a potentially important function to criminal trials, in addition to more established functions such as the determination of guilt, retribution, or deterrence. Some have advocated criminal trials in transitional situations in part for this reason, for example, for the cases of post-Communist Eastern Europe and for postmilitary dictatorship in Argentina.33 Such proponents of trials recognize that the construction of memories of the repressive past is instrumental in the management of transitions from authoritarian regimes to democracy and from civil war to peace.34 The ritual power of law is, of course, supplemented by the fact that law is backed by the legitimizing potential of procedure, as highlighted by the great theorist Niklas Luhmann and, in line with Max Weber’s classical thought, by the coercive apparatus of the state—even if the latter applies only in more tangential ways in the international realm.35 At the same time, legal proceedings face limits when they contribute to the construction of the memory of atrocities. These limits are not just of theoretical interest: practitioners must be mindful of them when they seek to use law in ways envisioned by Justice Jackson or President Roosevelt. Law is subject to a particular set of institutional rules that, for example, restrict access to some information and allow only some evidence to be presented in court. Because of such rules, collective memory produced through legal processes will always differ from memories generated by historians or in the worlds of politics, art, and religion.36 Wise jurists are aware of such limits of law as a place for the reconstruction of history, as reflected in the words of the judges of the Jerusalem court in its 1961 proceedings against Adolf Eichmann, the organizer of central aspects of the Nazi extermination machine: The Court does not possess the facilities required for investigating general questions. . . . For example, to describe the historical background of the catastrophe, a great mass of documents and evidence has been submitted to us, collected most painstakingly and certainly out of a genuine desire to delineate as complete a picture as possible. Even so, all the material is but a tiny fraction of the existent sources on the subject. . . . As for questions of principle which are outside the realm of law, no one has made us

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judges of them and therefore our opinion on them carries no greater weight than that of any other person who has devoted study and thought to these questions. (Quoted in Osiel 1997, 80–81)37

Additional selectivities of law become obvious in Jeffrey Alexander’s discussion on how cultural trauma is created. As noted, cultural trauma is a specific type of collective memory that involves horrific events.38 The construction of cultural trauma, Alexander argues, is a process that consists of many factors: claims making by agents; carrier groups of the trauma process; speech acts, in which carrier groups address an audience in a specific situation, seeking to project the trauma claim to the audience; cultural classifications regarding the nature of the pain, the nature of the victim, the relation of the trauma victim to the wider audience, and the attribution of responsibility. Alexander observes that linguistic action, through which the master narrative of social suffering is created, is mediated by the nature of institutional arenas that contribute to it. Law certainly is a specific arena that interacts with all of the factors contributing to the construction of collective memory. Clearly, some claims can be better expressed in legal proceedings than others that will forever remain, in Franz Kafka’s famous words, before the law. Some carrier groups have easier access to law, classically illustrated for the privileged position of “repeat players,” as the sociolegal scholar Marc Galanter calls those who routinely use the law.39 Furthermore, some classifications of suffering and victims are more in line with those of the law than others. Law’s construction of the past, the kind of truth it speaks (vere dicere), the knowledge it produces, and the collective memory to which it contributes is thus always selective.40 In short, law faces noteworthy limits when actors use it to write history. These limits result from its institutional logic: a focus on the behavior of individuals; consideration of only a limited set of behaviors; constraints imposed by rules of evidence; and, for criminal law, its binary logic and exclusionary intent. Each of these features has consequences for the narratives that result from legal procedures and, through them, for collective memory.41 Today, as indicated in chapter 1, nation-states cannot be considered in isolation. International law has been developed by international organizations, with the involvement of nongovernmental organizations, and by international tribunals and courts, beginning with Nuremberg and later by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) to the first permanent institution at this level, the International Criminal Court (ICC). The stories these courts tell are reported in news media, documentaries, and films across the globe. Collective memory to some degree is thus

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global memory, as impressively documented by Daniel Levy and Natan Sznaider in their work on the memory of the Holocaust.42 It involves global scripts—recipes and moral imperatives for action—that many researchers have found to affect policymaking and implementation at the national level in a variety of areas, from environmental issues to human rights.43 While the global thus very much matters in the national and local spheres, the reverse is also true. Global law and global memories cannot be understood in isolation from local and national norms and memories.44 Actors articulate their local concerns within global settings. For example, American lawyers played a major role in building the ICTY by introducing American case law into the legal standards developed by that court.45 Furthermore, the global does not exist outside its incarnation into local practices: Global messages about individual human rights are interpreted differently in societies with highly collectivist and societies with individualist cultures and institutions.46 Finally, concrete local experiences and institutions color memories of events that may be retained globally. An excellent, albeit extreme, example is the memories in the United States and Vietnam of the Vietnam War and of specific events such as the My Lai massacre.47 The memory of those who were victims and ended up as victors is clearly distinct from that of the perpetrators who left the war defeated.

Competitors and Mediators of Law: Truth Commissions, News Media, Scholarship Collective memory is obviously not just a product of legal proceedings. Other mechanisms such as truth commissions, art, historiography, the movie industry, museums, mass media, and civil society generally contribute to its formation. These institutions and processes may serve as competitors to legal constructions of the past; but they may also communicate a court’s message, even amplify it so that the message is widely received. At any rate, interactions between law and other institutions are likely to mitigate the impact law has on collective memory, and they complicate the empirical examination of this link. In this book, we seek to contribute to efforts at overcoming such challenges, which obviously are not unique to our topic.48

Truth Commissions and the Role of Law This book does not investigate truth commissions (TCs), but a brief discussion sheds additional light on the particular ways in which law writes history, some of law’s limits in doing so, and ways in which truth com-

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missions may supplement law’s role. Both trials (implicitly) and truth commissions (by their very definition) tell a story about the cruelties committed by perpetrators. Together, they may in fact be especially effective. As the political scientist Kathryn Sikkink’s work shows, human rights records and democratic functioning improve most remarkably where both trials and truth commissions address offenses against grave human rights abuses. What, then, is the added value of truth commissions if courts already tell the history of atrocities? Truth commissions focus on the past, investigate enduring patterns of abuses, work for limited periods of time, and conclude their work with a report. They are officially sanctioned and authorized by the state. This definition underlies the most comprehensive comparative study of truth commissions to date, including those of Argentina, Chile, El Salvador, Guatemala, Germany, Uganda, and South Africa.49 Most truth commissions share additional characteristics in that they focus on the recent past, were established during a political transition, and investigated politically motivated repression. Most also have the same set of basic goals, even if the specific focuses vary: to bring to light and officially acknowledge past abuses, to respond to victims’ needs, to set the stage for justice and accountability, to recommend institutional changes, and to promote reconciliation. The name truth commission is often misleading, as the truth is frequently well known; it is its acknowledgement that is at stake. Some two to three dozen truth commissions or truth and reconciliation commissions have been at work since 1974, used primarily as alternatives or complements to criminal trials. They are often perceived as advantageous in light of the limits and selectivities of trials, as noted earlier in this chapter, especially when perpetrators and victims represent two distinct groups in society that must coexist in the postatrocity era.50 Truth commissions—working under a different institutional logic from criminal courts—may contribute to accountability in ways not available to criminal courts. Rather than attributing responsibility to particular individuals alone, they are better suited to examining broad patterns of abuses, thereby encouraging institutional reforms. In addition, they can also challenge entire sectors of society and segments of the population that carry some degree of responsibility, from bureaucrats to torturers and profiteers to bystanders who refused to speak up. They are more likely than courts to allow evidence about sick cultural patterns and national shame. In other words, truth commissions establish collective guilt, or at least responsibility, while criminal courts attribute guilt to a relatively small number of individuals, thereby “decoupling” (Giesen 2004a; 2004b, 120) larger segments of the population from the attribution of guilt. Another difference between truth commissions and courts is the use of distinct emotional registers. While the former often engage in sorrow,

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hope, and forgiving, the latter aim at condemnation and the buffering of anger. Emile Durkheim (1984), in his famous book on the division of labor in society, wrote about ways in which law, through its formal rules and procedures, mitigates unhampered emotions. Exceptions notwithstanding, as illustrated by the race riots evoked by the not-guilty verdict against several Los Angeles police officers whose brutal beating of the African American motorist Rodney King was caught on camera, this argument seems to have some validity, especially for actors inside the court. Consider findings from a recent Australian study of magistrates: “Magistrates must often regulate their own emotions and those of some court users, many of whom are not legally represented and who express a variety of emotions, including anger and distress, and experience social problems that may elicit emotions or emotional responses from the magistrate” (Anleu and Mack 2005, 590). Different from courts, truth commissions open the trauma outward so that many, including perpetrators, are caught up in the reconstruction of the horrific past.51 In short, criminal courts and truth commissions differ along two basic dimensions. First, while truth commissions amplify emotions, courts seek to reduce them even as they highlight and direct public attention at the crimes. Second, while courts engage in “othering,” that is, they seek to hold responsible a select few and to exclude them from the community, truth commissions are concerned with integrating. Truth commissions, different from criminal courts, are thus in line with what the Australian criminologist John Braithwaite has referred to as reintegrative shaming.52 In the words of Desmond Tutu, the leader of the South African Truth and Reconciliation Commission, “Social harmony is for us . . . the greatest good” (quoted in Wilson 2003, 370).53 It is quite plausible that such complementary advantages of trials and truth commissions contribute to the better outcomes Sikkink identifies when both are jointly at work. While truth commissions obviously bring surplus value to the construction of collective memories, it must also be noted that their contributions, like those of courts, are selective. Critics stress that truth and reconciliation commissions are more concerned with collective wellbeing than with the fate of individuals and that the commission’s primary interest is the well-being of the state.54 In his critique of the South African Truth and Reconciliation Commission, the anthropologist Richard Wilson (2003, 369) argues that “a culture of human rights was constructed upon the quicksand of a culture of impunity.”55 Yet other studies are more sanguine in their assessments of truth commissions for the effective construction of collective memory and, through it, for ending long-standing cycles of violence. Consider, for instance, Priscilla Hayner’s in-depth analysis of the Argentinian truth commission, the National Commission on the Disappearance of Persons, created in 1983

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by decree by President Raúl Alfonsin after seven years of military dictatorship. An estimated ten thousand to thirty thousand citizens endured arrest and torture and were “disappeared.” While commission hearings were not held in public, the work nevertheless produced much publicity as exiles returned home to testify and commission staff visited former torture centers and secret cemeteries. Taking more than seven thousand statements, including at least fifteen hundred from survivors of detention camps, the commission documented camp conditions, torture practices, and lists of 365 former torture centers and of 8,960 disappeared persons. The commission delivered a report after nine months of work that became a best seller in Argentina. The commission turned its files over to the prosecutor’s office and thus provided critical evidence for the cases against senior members of the military junta. This example illustrates how truth commissions may create an evidentiary basis for later trials, thereby producing the synergy that joint trials and truth commissions can achieve. In line with this assessment, James Gibson’s (2004a, 2004b, 2006) work on South Africa suggests that those who largely accepted the truth about the nation’s apartheid past were more likely to hold remedial attitudes, for instance, in the realm of race relations.

News Media and Historical Scholarship While truth commissions thus illustrate how law’s effect may be supplemented, cognitively and affectively, by that of other institutions, news media obviously play an essential role in disseminating the court’s message. Criminal courts in modern societies are incapable of reaching large audiences directly.56 John Hagan, the former president of the American Society of Criminology, in his dual account of the atrocities committed in the Balkan wars and the building of the ICTY, addresses how the charisma of the head prosecutors must work in tandem with mass media: “Even at Nuremberg, Justice Jackson needed . . . the cultivation of an initially unengaged press corps to play his charismatic role in the prosecution of Hermann Goering and his colleagues. . . . By the time of Ted Turner and CNN’s globalization of the news, the creation and consequences of charisma were even more important parts of international criminal practice” (Hagan 2003, 7). Yet to further complicate the story, news media do not simply disseminate the court’s accounts of history. At times they reinforce selectivities of the court. The focus on individuals, for example, is a prominent feature of both criminal law and media reporting. At other times, news media apply their own selectivities in the coverage of trials.57 A recent account of a Holocaust denial case in Canada illustrates this point.58 Using a “rebuttal” strategy, prosecutors tried to disprove the defendant’s statements by

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calling experts and survivors to the stand. This strategy caused considerable public attention, just as supporters of trials would prefer. Yet publicity also allowed for controversies and misleading newspaper headlines, some of which focused on any element of doubt about selective pieces of evidence. Defense attorneys capitalized on memory slips on the part of elderly survivor-witnesses, for example, who sought to remember terrifying experiences from many decades ago, and news media reported such doubts. After a conviction was overturned on procedural grounds, a second set of prosecutors used an alternative “unmasking” strategy, seeking to show that the defendant, as a Nazi, had an interest in denying the Holocaust. This strategy sought to discredit the defendant and his motives while avoiding a detailed engagement of past records. In doing so, the prosecution cleverly obviated the need to discredit the defendant’s claims.59 This second trial, void of the presentation of historical evidence, provoked neither public controversy nor problematic publicity for Holocaust deniers. Clearly, prosecutorial strategies, in concert with media responses, can affect what narratives of history come out of court proceedings and the way they are communicated to a broader public. Our analyses of media reporting on the My Lai massacre, the Haditha killings, and the late president Slobodan Milosevic’s role in the Balkan atrocities sheds further light on this media-trial nexus (see chapters 3 to 5). Like news media, historians also examine legal proceedings against high-caliber perpetrators. In doing so they not only tell the history of the trials but also provide accounts of the atrocities to which trials respond. Furthermore, like journalists, historians do not just tell the history of atrocities revealed in trials; they also work with evidence that may result from court orders that were not admitted during the trial proceedings. In addition, as the rules of scholarship—again, like those of journalism—differ from the rules of criminal procedure, scholarly accounts often challenge the narratives that unfold during the court proceedings. Patricia Heberer and Jürgen Matthäus’s Atrocities on Trial deals with post-Holocaust cases and provides excellent examples.60 Its historical analyses engage in a profound critique of the legal proceedings, the history post–World War II trials produced, and the judgments at which the courts arrived. The authors also identify conditions of shortcomings, conditions that are attributable not simply to legal logic but also to political context. Insufficiencies in punishment, for example, are attributed to the Allies’ postwar policy goals, especially the delegitimization of the Nazi regime and the democratization of the German public (hence the focus on a relatively small number of Nazi leaders) and first signs of the pending Cold War. In short, evidence produced through trials is often filtered by other mechanisms such as media reporting and scholarship. This evidence is

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thereby disseminated to a much broader audience than the court proceedings themselves could reach. Yet these “middlemen” (journalists, historians) draw on evidence selectively and in line with the logics of the institutions in which they work. Middlemen may also reflect critically on the historical record produced by the courts and point to factors that have contributed to the distortion of such history—distortion at least in light of the respective rules of evidence under which journalists and historians work. That said, at present we do not know whether historical narratives produced by trials have staying power in the face of critical or alternative accounts from other institutions. This issue is taken up in the next chapter.

From Collective Memory to the End of Violence? Signs of Hope—and Resignation The construction of collective memory, through legal or other means, may indeed have serious consequences. A line of argument has been developed in recent years that the collective memory of past atrocities is a key mechanism determining whether cycles of violence and hatred will persist or cease. The law professor Martha Minow, for example, claims that the nature of responses to mass violence and the historical narrative that unfolds through these responses can stymie or propel violence in large part because of the resulting collective memory.61 Minow’s reasoning cuts across disciplines, as the political scientist Jens Meierhenrich (2006b, 319–20) makes a similar argument. He states that “the representation of the past is of immediate relevance for the problem of social order. For the representation of the past affects the strategy of conflict, determining legal and other responses to collective violence. . . . The menu of choices available to victims and survivors—from reconciliation to revenge—is filtered through representations of the past.” The argument hints at complexities: Collective memory may have very diverse consequences, depending on the shape it takes. Ethnic leaders in the former Yugoslavia, preceding the decade before the break-up of the country, frequently cultivated collective memory, reminding their followers of past defeats and atrocities committed against their ancestors. They obviously did not do so to put an end to violence. Their purpose was quite the opposite—to marshal support for their cause, which eventually resulted in rape campaigns, the deaths of tens of thousands, and the displacement of millions. In other contexts, however, different memories of past violence may have pacifying consequences. The cultivation of memories of war in Germany, for example, created a culture that has been intensely opposed to the idea of war and military ventures. Nonetheless, we emphasize that cases do not easily fall into one or the

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other category, owing to mnemonic struggles and changes in collective memory. A spirit of skepticism toward war in the wake of the Vietnam War in the United States, for example, gave way to a much greater willingness to use the military to resolve international conflicts after the quick and decisive victory in the first war with Iraq. This shift in trust in the military was almost certainly affected by changes in collective memory and the commemoration of war, including Vietnam (see chapters 3 and 4 for details).62 Collective memory, of course, does not matter only in the unfolding and prevention of violence following periods of transitional justice and international conflict. Collective memory also plays manifold, but frequently overlooked, roles within stable democracies. Liberal democracies, too, are no strangers to hate-inspired violence, and we argue in later chapters that distinct collective memories influence nation- and region-specific legal responses to hatred and intergroup conflict. Chapters 7 through 9 of this volume, while further contributing to an understanding of the making of collective memory, focus on this heretofore underexplored theme— the impact of collective memory on the institutionalization of control mechanisms against hate-inspired violence in stable democracies. In particular, we identify diverse mechanisms through which collective memory motivates and shapes control responses. We pay particular attention to the prominent roles of carrier groups and interest groups, the use of bridging metaphors and analogical connections with the Holocaust, and the importance of historical consciousness. We further argue and demonstrate empirically in these chapters that whatever its source, collective memory contributes to the content and enforcement of law generally and hate crime law specifically. To wit, by considering collective memory we can more fully understand and explain law on the books, law in action, and variation in each at both the national and regional levels. In short, collective memories of past violence and atrocities can, under particular circumstances, lead to control responses that at least have the potential of reducing or even ending the risk of future violence. Much depends on the way memory is formed, and the way it is formed is inspired by the institutions through which it is created. We think these processes have been underexplored to date. This volume seeks to make a contribution by theoretically and empirically addressing this apparent deficit in existing literature.

Summation At this juncture we have covered considerable ground and established some basic understanding of collective memory, especially the memory of atrocities, its features, and the conditions under which it emerges, is main-

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tained, and is diffused. We have specifically addressed ways in which court proceedings contribute to the formation of collective memory, the symbolic power trials may have, and the selectivities of legal narratives. We have also looked at other institutions, such as truth commissions, news media, and scholarship, that may supplement courts in the shaping of collective memory. These institutions may at times compete with courts and at other times serve as a megaphone for disseminating the message courts produce to a wider public. We have, finally, taken a brief look at the conditions under which such collective memories, once constructed, may more or less successfully contribute to ending episodes of violence and preventing future occurrences. This discussion should prepare the reader for the following chapters. Each chapter contains new specifics that are clarified as we move along, including the role of textbooks and media reports as indicators and transmitters of collective memory, the role of carrier groups, historical consciousness, haunting, and the local organization of law and law enforcement. Our discussion so far delineates the common conceptual and theoretical frame for all the following chapters. We have laid a foundation on which to build an understanding of American memories of atrocities and the way law has shaped them and, in turn, been affected by them.

Chapter 3 Constructing and Remembering the My Lai Massacre WITH

RAJIV EVAN RAJAN AND LACY MITCHELL

I

F A HIGH school student asked, “What was My Lai?” how would you answer? Could you correctly pronounce My Lai? When did it happen? Would you describe it as a watershed event in American history? Who were the key people or institutions involved? Did anyone die, and if so, who, how many, and at whose hands? Some of these questions are matters of historical fact. My Lai (pronounced “me lie”) is a hamlet in the village of Son My on the coast of central Vietnam. It is also accepted that several hundred innocent Vietnamese civilians, mostly women, children, and old men, were killed by members of an American infantry brigade on March 16, 1968, during the peak of the Vietnam War. The historian Kendrick Oliver (2006, 1) provides the following concise description in the introduction to his book, The My Lai Massacre in American History and Memory:

On the morning of 16 March 1968, the men of Charlie Company, 11th Light Infantry Brigade, Americal Division, US Army, entered the hamlet of Tu Cung [which includes the subhamlet of My Lai 4], in the village of Son My. . . . The Company was assigned to a temporary battalion-sized unit named Task Force Barker, and it was led by Captain Ernest Medina. In charge of the company’s 1st Platoon was Lieutenant William Calley. Inside Tu Cung, the company encountered no enemy forces, no opposing fire of any kind. Its only casualty was self-inflicted. Nevertheless, by early afternoon, well over 300 residents of the hamlet lay dead. Those killed were, predominantly, either women, old men or small children. For a number of the women, rape had preceded death.

The “when” and “where” questions about My Lai can be answered with little controversy. However, answers given to some of the other 34

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questions vary considerably depending on the source of information. For instance, consider the issue of civilian deaths. Oliver makes reference to around 300. A military commission (the Peers Commission; we return to this shortly) investigating the affair estimated a death count of between 175 and 400, and a book by the journalist Seymour Hersh (1970, 75) puts the number killed at 450 to 500. We also note that a tablet at the memorial site at Son My village in Vietnam lists 504 names (Tim O’Brien, “The Vietnam in Me,” New York Times, October 2, 1994, p. SM52), more than twenty times the number (“not less than 22 victims”) that Lt. Calley was found guilty of killing. Hence, we encounter multiple sources of information—journalistic, military, legal—that differ even with regard to the basic numeric facts of the case. But which of these make their way into American memories? Now consider culpability. Was this a matter of lone soldiers “losing their cool” with grave consequences? Was it an effect of the “broader culture of American war-making” in Vietnam (Oliver 2006, 55)? Did the top brass of the U.S. Army bear any responsibility, and did they attempt to cover up the incident? Each explanation has been put forth at some point or another, and again each seems to align with the story told by the military, by journalists, or through the trial. But which, if any, has solidified a place in American collective memory? Finally, consider the question of impact. According to a November 1969 New York Times editorial, the event “may turn out to have been one of the nation’s most ignoble hours.” The theologian Reinhold Niebuhr wrote at the time, “This is a moment of truth when we realize that we are not a virtuous nation.” And Time magazine asserted in its April 12, 1971, issue (p. 19) that “the crisis of confidence caused by the Calley affair is a graver phenomenon than the horror following the assassination of President Kennedy. Historically it is far more crucial.”1 Adding to that assessment, the NBC news anchorman Frank McGee declared that My Lai was a name “now seared into the American consciousness” (quoted in Oliver 2006, 231). Yet there is every indication that the memories of later generations do not live up to such expectations. Writing more than twenty-five years after the My Lai incident, Tim O’Brien, a Vietnam veteran and author of books about the war, suggested that the initial claims of a “grave” event that was “seared” into the consciousness of an otherwise “virtuous” nation did not properly anticipate the potential for amnesia that is commonplace in American society. As O’Brien lamented already almost two decades ago, All this is history. Dead as those dead women and kids. Even at the time, most Americans seemed to shrug it off as a cruel, nasty, inevitable consequence of war. There were numerous excuses, numerous rationalizations.

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American Memories Upright citizens decried even the small bit of justice secured by the conviction of Lieutenant Calley. Now, more than 25 years later, the villainy of that Saturday morning in 1968 has been pushed off to the margins of memory. In the colleges and high schools I sometimes visit, the mention of My Lai brings on null stares, a sort of puzzlement, disbelief mixed with utter ignorance. (O’Brien 1994, SM52)

Not inconsistent with O’Brien’s rather dismal appraisal, our own content analysis of more than one hundred U.S. history textbooks reveals that fewer than half make any mention of the My Lai massacre. Of those mentioning My Lai, the median word count is less than 80 words (as a point of comparison, the preceding quote by O’Brien is 102 words). Hence, it is not so clear that Americans recall My Lai as something “more crucial” than the Kennedy assassination. Because of its alleged significance at the time and the various narratives of My Lai that emerged in the years after 1968, the constructed memory of the My Lai massacre provides an unusual opportunity to explore new ground in the realm of law and collective memory. The response to the massacre began with a cover-up by the U.S. Army. After the cover-up was exposed a year later, three narratives emerged about the incident, each in a distinct institutional setting. The first was a Pulitzer Prize–winning book by Seymour Hersh (1970) titled My Lai 4. The second was the U.S. Army’s Peers Commission report, named after Lt. Gen. William R. Peers, who led an investigatory commission examining the events. This four-volume report remained guarded until 1974, when two volumes were released. The first of these volumes was later published, with an introduction and some supplementary materials (Goldstein, Marshall, and Schwartz 1976). The third narrative was based on the findings of a criminal court in which Lt. William Calley Jr. was found guilty and sentenced to life in prison in 1971.2 In line with the guiding questions of this book, the following section contrasts the legal narrative with the journalistic and executive accounts before we set out to examine whether and how these alternative narratives have been reflected in news media reporting and in American high school history textbooks, both of which are important indicators of, and active players in, the formation of collective memory.3 Uncovering how the legacy of My Lai unfolded arguably takes on new relevance today as we find ourselves engaged in a war that gave “Abu Ghraib” and “Haditha” specific and pernicious meaning—the first referring to abuse and torture of detained prisoners, the second to the killing of many civilians—again, mostly women and children— in the recent war in Iraq. This is also a time in which the legitimacy, not to mention the legality, of torture is again part of the public discourse, as is the willingness to tolerate civilian casualties. We might

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then ask whether the memory of My Lai informs these issues (see chapter 4). The case of My Lai allows us to partially evaluate whether legal trials powerfully contribute to the writing of history and the shaping of collective memory. As mentioned in the previous chapter, some jurists and prominent politicians have claimed, and in some cases promoted, the idea that trials could serve precisely this end. At the same time, research on cultural trauma and the institutional conditions of knowledge production warn us that historical narratives constructed through legal proceedings present a selective depiction of past events that differs in kind from, and competes with, not only historians’ accounts but also narratives created in other institutional spheres, such as journalism. We use this case to observe how institutions such as mass media and textbook industries make selective use of trial narratives before these reach a broad audience. The cultural processing of the My Lai massacre thus provides an opportunity to examine many prominent claims from the worlds of scholarship, politics, and law and to examine the complex interactions between diverse social forces that contribute to the construction of collective memory.

The My Lai Massacre: A Trio of Tales The Report of the Department of the Army Review of the Preliminary Investigations into the My Lai Incident, more commonly referred to as the Peers Inquiry or the Peers Report, was a rather thorough investigation of the My Lai incident. Lieutenant General Peers was originally directed by Gen. William C. Westmoreland, the U.S. Army chief of staff, and Stanley Resor, secretary of the army, with the following charge: “To explore the nature and the scope of the original U.S. Army investigation(s) of the alleged My Lai (4) incident which occurred 16 March 1968 in Quang Ngai Province, Republic of Vietnam. Your investigation will include a determination of the adequacy of the investigation(s) or inquiries on this subject, their subsequent reviews and reports within the chain of command, and possible suppression or withholding of information by persons involved in the incident.”4 But as noted in the introduction of the report, “It became apparent at an early stage that the adequacy of those reports and investigations could not be evaluated intelligently without a thorough understanding of what actually took place during Task Force (TF) Barker’s operations in the Son My area on 16–19 March 1968. . . . For these reasons, the scope of the Inquiry included a complete examination into the operational situation throughout.”5

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The Peers Commission summarized the events as follows, addressing various dimensions of organizational and individual behavior (marked by us in brackets; we did not include all items): 1. During the period March 16–19, 1968, U.S. Army troops of TF [Task Force] Barker, 11th Brigade, Americal Division, massacred a large number of noncombatants in two villages of Son My Village, Quang Ngai Province, Republic of Vietnam. The precise number of Vietnamese killed cannot be determined but was at least 175 and may exceed 400. 2. The massacre occurred in conjunction with a combat operation which was intended to neutralize Son My Village as a logistical support base and staging area, and to destroy elements of an enemy battalion thought to be located in the Son My area. 3. The massacre resulted primarily from the nature of the orders issued by persons in the chain of command within TF Barker . . . [Organizational responsibility] 5. Prior to the incident, there had developed within certain elements of the 11th Brigade a permissive attitude toward the treatment and safeguarding of noncombatants which contributed to the mistreatment of such persons during the Son My operation. [Organizational culture] 6. The permissive attitude in the treatment of Vietnamese was, on 16–19 March 1968, exemplified by an almost total disregard for the lives and property of the civilian population of Son My Village on the part of commanders and key staff officers of TF Barker. [Organizational and individual responsibility] 7. On 16 March, soldiers at the squad and platoon level, with some elements of TF Barker, murdered noncombatants while under the supervision and control of their immediate superiors. [Individual and organizational responsibility] 8. A part of the crimes visited on the inhabitants of Son My Village included individual and group acts of murder, rape, sodomy, maiming, and assault of noncombatants and the mistreatment and killing of detainees. They further included the killing of livestock, destruction of crops, closing of wells, and the burning of dwellings in several subhamlets. . . . 19. At every command level within the Americal Division, actions were taken, both wittingly and unwittingly, which effectively suppressed information concerning the war crimes committed at Son My Village. [Organizational responsibility and individual responsibility across several levels of command]6

The summary includes additional sections on the inadequacy of reports, investigations, reviews, policies, directives, and training and on the actions of individuals involved in the massacre. The report covers only the period between March 16, 1968, and March 29, 1969, the date on

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which Ronald Ridenhour, a Vietnam veteran, sent a letter to President Richard Nixon, Pentagon officials, and members of the U.S. Congress that revealed information he had gathered on the massacre and the cover-up. Owing to the secrecy of the commission’s work, Ridenhour believed that the cover-up was continuing. His subsequent contact with Seymour Hersh resulted in Hersh’s 1970 book My Lai 4, which drew considerable public attention to the case. The journalistic narrative adds graphic detail to the commission report. For instance, consider the following excerpt from Hersh’s (1970, 49–54) account: The killings began without warning. . . . [One witness reports he saw] “some old women and some little children—fifteen or twenty of them—in a group around a temple where some incense was burning. They were kneeling and crying and praying, and various soldiers . . . walked by and executed these women and children by shooting them in the head with their rifles.” There were few physical protests from the people; about eighty of them were taken quietly from their homes and herded together in a plaza area. . . . [First Platoon commander Lt.] Calley left [subordinates] Meadlo, Boyce and a few others with the responsibility of guarding the group. “You know what I want you to do with them,” he told Meadlo. Ten minutes later—about 8:15 A.M.—he returned and asked, “Haven’t you got rid of them yet? I want them dead.” Radioman [Charles] Sledge who was trailing Calley, heard the officer tell Meadlo to “waste them.” Meadlo followed orders: “We stood about ten to fifteen feet away from them and then [Calley] started shooting them. Then he told me to start shooting them. I started to shoot them. So we went ahead and killed them. . . . Women were huddled against their children, vainly trying to save them. . . .” By this time there was shooting everywhere. . . . Brooks and his men in the second platoon to the north had begun to systematically ransack the hamlet and slaughter the people, kill the livestock and destroy the crops. Men poured rifle and machine gun fire without knowing—or seemingly caring—who was inside. . . . [Herbert] Carter testified that soon after the third platoon moved in, a woman was sighted. Somebody knocked her down, and then, Carter said, “[Commander of Company C, Capt. Ernest] Medina shot her with his M16 rifle. I was fifty or sixty feet away and saw this. There was no reason to shoot the girl.” The men continued on, making sure no one was escaping. “We came to where the soldiers had collected fifteen or more Vietnamese men, women and children in a group. . . . Medina said: ‘Kill every one. Leave no one standing.’ A machine gunner began firing into the group. Moments later one of Medina’s radio operators slowly ‘passed’ among them and finished them off.”

The events captured and narrated in the Peers Commission report and in Hersh’s book were ultimately accompanied by a third narrative—the criminal trial. Initial investigations of about thirty individuals resulted in

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formal charges against more than half of them (Kelman and Hamilton 2002). The court proceedings addressed two types of behavior. The first covered a large number of “spontaneous” rapes and killings of individuals during the “mop-up” operation for which Lieutenant [Jeffrey] LaCross’s third platoon was largely responsible. According to Hersh (1970, 72), “Le Tong, a twenty-eight-year-old rice farmer, reported seeing one woman raped after GIs killed her children. Nguyen Khoa, a thirty-seven-year-old peasant, told of the thirteen-year-old girl who was raped before being killed. GIs then attacked Khoa’s wife, tearing off her clothes. Before they could rape her, however, Khoa said, their six-yearold son, riddled with bullets, fell and saturated her with blood. The GIs left her alone.” Such “unofficial” reports of spontaneous atrocities were not backed by the same hard evidence as the ordered mass killing executed by the First Platoon under the command of Lieutenant Calley, on which the charges were based. Calley stood trial for 102 of the killings he had ordered and in which he had participated. He pleaded, in his defense, that his actions were in line with superior orders. Yet as the courtmartial argued, and as the judge confirmed in his instructions to the jury, “the obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent, obliged to respond, not as a machine, but as a person. The law takes these factors into account in assessing criminal responsibility for acts done in compliance with illegal orders” (quoted in Kelman and Hamilton 2002, 209). A jury of combat veterans eventually convicted William Calley of premeditated murder of not less than twenty-two persons. The conviction was based on witness testimony confirming that Calley had ordered and participated in the mass executions, witnessed by members of the platoon and by a helicopter crew (under Chief Warrant Officer Hugh Thompson, who eventually intervened to save the lives of some of the villagers).7 Legal proof was too weak to link the massacre to orders from superiors, especially since Lt. Col. Frank A. Barker, Medina’s immediate superior, was killed in action shortly after the Son My massacre. Captain Medina, the commander of Company C, who had given the orders for the attack on Son My on March 15, 1968, was not found guilty. Neither were other members of the company, nor those who engaged in spontaneous atrocities, nor direct subordinates of Lieutenant Calley who participated in the mass executions. Rules of evidence, in the eyes of the court, allowed only for the conviction of one participant in the massacre.8 We thus find a distinct difference between the accounts of the Peers Commission and the journalistic report by Seymour Hersh, on one hand, and the trial narrative, on the other.

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The commission and the journalistic report find that responsibility for the massacre and the cover-up rests with the many members of Company C, including its commander, and with military personnel above the company level, which was not a conclusion reached by the court. The commission and journalistic accounts address the organized massacre and “spontaneous” rapes and killings, whereas the verdict focuses on the organized mass execution. The number of victims as estimated by the Peers Commission was at least 175 and possibly more than 400. Hersh’s (1970, 75) account (450 to 500) exceeds the upper end of the Peers estimate. The court, constrained by evidentiary rules, charged Captain Medina with the murder of 102 civilians, but in the end only Lieutenant Calley was found guilty of at least twenty-two killings. In addition, opinion polls after the trial revealed strong public disagreement with the Calley conviction. Which of these distinct constructions of reality do we encounter in American news reporting and in high school history textbooks, if any? How powerful is the trial relative to journalism and military reports? Has the trial become a force in the shaping of the collective memories of subsequent generations?

My Lai in the Media and the Classroom Court trials reach a broader public primarily through the mass media, but history textbooks also communicate historical events to a younger, impressionable audience. They may be highly effective in doing so, especially when linked with strong social movements such as the civil rights movement, as shown in recent work on the changing images of President Lincoln.9 Textbook writers, of course, draw on a variety of sources. Historical and highly significant criminal trials are likely among them, especially as these legal proceedings constitute a kind of government-certified knowledge. Yet textbook production is driven by its own institutional rules and its own logic in which peculiar markets play a central role. Decisions on the acquisition of textbooks are typically made by school boards based on recommendations from adoption committees, themselves formed by school boards. In some states, such as Texas and California—massive customers that textbook publishers seek to satisfy—decisions are made at the state level. Guidelines that speak to the desired content of textbooks are typically taken seriously by publishers, who make enormous

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investments in each textbook and are eager to see returns. Diverse lobby groups guard carefully over these guidelines and the production to make sure that no “offensive” content appears in the books. These processes are described in a highly informative and provocative book by the New York University professor Diane Ravitch, a former undersecretary of education during the George H. W. Bush administration and co-chair of the California committee that was responsible for a major overhaul of that state’s content guidelines in the mid-1980s.10 They are likely to privilege state-certified views of history and not to offend powerful constituents. The latter include actors such as Mel and Norma Gabler, major conservative players in the state of Texas, and a multitude of minority constituents in California. Textbooks thus reflect to a considerable degree what those in power and those well organized see as valid interpretations of history. No doubt, this aspect of history writing closely resonates with Halbwachs’s (1992) presentist approach. And though more critical materials were included in history textbooks after the late 1960s, opinions on the degree differ in the literature.11 While Ravitch notes a surplus of critical content about the United States in recent decades, at least in global history texts, others argue that such views on the nation continue to be underrepresented.12 Our analysis of My Lai depictions speaks to this debate with empirical evidence. Hence we are looking for a few things in our newspaper and textbook data sources. How much coverage existed of the My Lai massacre? Which of the three narratives described earlier seems to dominate? And is there a tendency to play down this horrific event?

Data Collection and Analysis We obtained information from two sources. To compile a sample of high school history textbooks, we began with database searches (EBSCO: Academic Search Complete and JSTOR). Through these searches we established a list of all scholarly journal articles that used content analysis on U.S. high school history textbooks published after 1969.13 Copies of each book and article were located and reviewed, and these sources informed a list of all cited textbooks published after 1968 (information about My Lai was released to the general public in 1969).14 Additional sources were then located and reviewed for any cited textbooks. We subsequently identified chapters on the Vietnam War in each textbook and highlighted information pertaining to the My Lai massacre. We catalogued several types of information that speak to the aforesaid narratives. For instance, does the chapter (or passage) highlight individual or organizational responsibility? Are upper ranks of the military implicated? How are perpetrators and victims described? Is there mention of a cover-

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up? In the end, we were able to assemble a dataset with 105 American history textbooks (see appendix A for a bibliography of all textbooks). We then used a similar coding scheme to assess how My Lai was discussed in news reporting. Here we used LexisNexis to identify articles discussing My Lai and published in the New York Times between 1969 and 2006. The articles were located and coded in a manner consistent with the procedure applied to the examination of history textbooks. This dataset resulted in 676 news articles, nearly 90 percent of which appeared in the 1970s. The findings from our content analysis of textbooks are revealing. For one, and despite the grand conjecture immediately after the massacre about My Lai being a watershed event on par with the Kennedy assassination, this mass killing of women and children appears in only a minority of American history textbooks. In our sample of 105 textbooks, 61 percent (64) make no mention of My Lai. All textbooks contain substantial chapters on the Vietnam War, and some mention damage caused to the Vietnamese countryside or the unintentional bombing of civilians.15 Nevertheless, the majority of textbooks avoid any explicit reference to the My Lai massacre. Also of interest is the timing of references to My Lai. Thirty-six of the books in our sample were published in the 1970s, 33 in the 1980s, and 17 and 19, respectively, in the following two decades. Interestingly, between 20 and 30 percent of the textbooks published in the 1970s and 1980s mention My Lai, but in the following two decades the number jumps to between 58 and 71 (see figure 3.1). This appears to be consistent with Ravitch’s claim that textbook content on the United States has become more critical in recent decades. Yet here the onset of reporting about a problematic event occurs almost two decades later than she leads us to expect. This suggests that an explanation different from Ravitch’s might carry more weight in the case of My Lai: that textbooks turn more critical as the specific event becomes more distant, possibly because vested interests by specific actors wane with growing distance. Further insight is gained when we examine the detail with which the My Lai incident is depicted over time. Figure 3.2 plots the word count for each textbook passage relating to My Lai included in our sample by year. Using this indicator, we see that coverage begins the year after the court-martial and remains fairly steady until about 1979. Then, both the frequency and breadth of coverage noticeably decline during much of the 1980s, only to pick up again in the early 1990s. The decline during the 1980s is consistent with the rhetoric of then President Reagan, who masterfully sought to restore Americans’ pride in their nation and military. Yet the 1990s and the first decade of the twenty-first century saw a recurrence of war and war-related themes, and some of the Reagan optimism gave way to disenchantment. Moreover, there often exists a

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Figure 3.1

Mention of My Lai in Sampled American History Textbooks, by Decade, 1970 to 2009

80

Number and Percentage

70

71

Number of books Percentage mentioning My Lai

58

60 50 40 30

36

33 25

27

20

17

19

10 0 1970s

1980s

1990s

2000s

Decade Source: Authors’ compilation of information from American history textbooks. See appendix A for complete list.

period of latency between the occurrence of horrific events and their firm establishment in the telling of history.16 As we show later, however, this modest resurgence of textbook reporting about My Lai did not generally affect Americans’ attitudes toward their military. Our data further indicate that even when My Lai is mentioned in history textbooks, such utterances are typically brief, sometimes utterly fleeting. In books that mention My Lai, the event is often given scant attention—approximately one small paragraph. The following quote is illustrative of such passages. After critically reporting on General Westmoreland’s use of overwhelming firepower that drove many peasants into the arms of the Viet Cong, the authors of the 2003 edition of America. Past and Present inform their young readers: “Inevitably, these tactics led to the slaughter of innocent civilians, most notably in the hamlet of My Lai. In March of 1968, an American Company, led by Lieutenant William Calley, Jr., killed more than two hundred unarmed villagers” (Divine et al. 2003, 880). Other descriptions provide even less detail, and few include the gruesome particularities noted in Hersh’s book. For instance, The American Pageant: A History of the Republic includes only the following text: “Domestic disgust with the war was further deepened in 1970 by revela-

Constructing and Remembering the My Lai Massacre Figure 3.2

45

My Lai Word Count, by Year, 1970 to 2009

1,200

Number of Words

1,000 800 600 400

0

1970 1970 1971 1972 1973 1973 1975 1975 1977 1977 1978 1979 1980 1982 1983 1983 1985 1985 1985 1986 1986 1987 1988 1990 1992 1995 1995 1998 1999 2000 2001 2002 2003 2004 2005

200

Year Source: Authors’ compilation of information from American history textbooks. See appendix A for complete list. Note: The highest value was top-coded at 1,000, although the actual word count exceeded this value.

tions that in 1968 American troops had massacred innocent women and children in the village of My Lai” (Bailey, Kennedy, and Cohen 1998, 967). Some of the books include lengthier passages that report the details of the massacre, but the modal description of the My Lai massacre— when one is found at all—is both terse and generic.17 Most of the textbooks treat the massacre either as a microcosm of combat stress that overtook soldiers after North Vietnam’s Tet offensive (42 percent) or as an episode that contributed to changing attitudes about Vietnam on the home front (47 percent).18 Moreover, and most pertinent to this chapter, the trial narrative appears to be more prevalent than the commission’s and Seymour Hersh’s accounts in both the textbooks and the New York Times articles. The history textbooks show evidence of the legal narrative in multiple places. An initial and rudimentary comparison of sampled textbooks that mention My Lai revealed no direct mention of the Peers Commission report, and we found only four explicit references to Hersh’s book. References to the trial, however, are more frequent. For instance, one of the earliest books in our sample to mention My Lai includes the following: “For many in the nation

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the disclosure of American atrocities committed against North Vietnamese at My Lai were gruesome evidence of both the nature and futility of that war. These revelations came out mainly in the trial of Lieutenant William Calley. He was found guilty by a military court for allowing and encouraging troops under his immediate command to shoot at unarmed and helpless men, women, and children” (Leinwand 1975, 646; our emphasis). Lieutenant Calley is explicitly mentioned in nearly 60 percent of the books addressing the My Lai incident. Almost all of these books also make a general reference to U.S. troops; one refers to “a U.S. Army Officer” (likely Calley), yet few others are personally implicated. The only other name explicitly mentioned is that of Capt. Ernest Medina (one mention), who was court-martialed but found not guilty in the My Lai massacre. In addition, the trial made scant reference to the cover-up or the plausible culpability of military members of superior rank to Captain Medina. This omission is particularly striking in contrast to the Peers Commission report and Hersh’s book. In the textbook analysis we count only thirteen mentions (about a third of cases mentioning My Lai) of a cover-up, eight of which appear after 1990. Nine books (less than a quarter) implicate higher ranks. Although the books are hardly monolithic in their coverage of My Lai, the trial narrative appears to have stronger effects on textbook accounts than the two competing sources. The Times analysis corroborates these findings. For instance, our analysis deemed articles to fit a “script” (that is, that of Peers, Hersh, or the courtmartial) if the source itself is cited specifically by name in an article. A multiple-response analysis showed that when a script is mentioned, it is overwhelmingly the one provided by the military trial. Forty-three percent of articles make reference to the trial, compared with 2 percent that mention Hersh’s investigation and 7 percent that refer to the Peers Inquiry.19 A similar multiple-response analysis was employed for alleged perpetrators in the massacre. In all, nearly seventy different names or groups appear in the 676 articles we analyzed. As with the history textbooks, the modal category is Lieutenant Calley (180 mentions). A general reference to “U.S. troops” comes in a distant second (84), followed by Col. Oran Henderson (72) and Captain Medina (65).20 This pattern is particularly evident after the court-martial and conviction of Calley. Before 1971, the Times articles often make reference to U.S. troops as perpetrators at My Lai (21 percent of articles in our sample). In this early stage, ending three years after the massacre and during the year in which the trial concluded, Colonel Henderson was mentioned in fewer than 2 percent of the articles, Medina in fewer than 4 percent, and Calley in 18 percent. After the trial ended, mention of the My Lai culprits moved in the direction from the general (“U.S. troops”) to the particular (Calley,

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Medina). In the posttrial period, Calley was mentioned in 31 percent of cases, Henderson in 15, and Medina in 13 percent. Hence, in much the way that law enforcement can apotheosize an individual within a larger struggle, law can also defile individuals and render them symbols of a sinister crime.21 In the process, we encounter a collective forgetting of the larger milieu of circumstances surrounding the event. This sentiment is largely consistent with Kendrick Oliver’s recent conjecture. As Oliver (2006, 55–56) writes, “That the legal process emphasized the agency of a small number of individuals no doubt reinforced the inclination of the media to adopt what was in any case a common news practice when engaging with events as complex and enigmatic as those which had occurred at My Lai (4): to gain narrative and analytical traction by reducing the frame of reportage focusing upon the fate of one or two actors. This was most evident with regard to William Calley.” Finally, we examined the discussion of victims in both the history textbooks and the Times articles. Compared with the other aspects of our inquiry, the issue of victims revealed a greater variety of depictions. Looking first at the textbooks, we found that those published in the early years of our study period stay rather close to the trial narrative. They refer, for instance to “more than 100 villagers, including women, infants, and old people” (Lippe 1972, 161), or they report that “over one hundred unarmed and unresisting women, children, and babies were butchered in cold blood” (Bailey 1973, 999). Before 1980, only two books mention body counts that do not align with the trial narrative. The 1974 edition of United States History: Search for Freedom (Current, DeConde, and Dante 1974, 642) refers to a massacre of about five hundred men, women, and children, and the 1978 edition of Freedom and Crisis (Weinstein and Wilson 1978, 864) makes reference to 347 civilian casualties. Again, the discussion of My Lai appears somewhat muted in history textbooks during much of the 1980s. One book in our sample (Bailey and Kennedy 1983, 882) refers to Calley’s conviction of murdering “some twenty victims” in 1983, but this is one of only a few mentions of My Lai between 1979 and 1986. Then, beginning in 1986, a substantially higher proportion of textbooks mention the number of victims as exceeding two hundred, although they continue to range from very general references (“dozens of women and children”; see Carnes and Garraty 2003, 806) to “at least 450 women, children, and elderly men” (Ayers et al. 2007, 975). The New York Times tells a comparable story, although these articles appear to stay closer to the trial narrative. When we restrict our analysis to general articles (omitting obituaries, op-ed essays, and letters to the editor), about 42 percent make no reference to the number of casualties, mentioning only “civilians” or “women and children.” More than one-third, however, report a number of causalities that seems to reflect

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the trial narrative. Precisely 40 percent of general articles in our sample cite the number of civilian deaths as somewhere between 10 and 125. These numbers are close to either the number of charges (for 102 deaths) or convictions (not less than 22) achieved in the trial. Only about 10 percent of articles mention civilian deaths consistent with Hersh’s investigation (350–400) or the Peers Report (175; perhaps as many as 400). We close with a note on the context in which My Lai is discussed. We observe that textbook depictions of My Lai rarely occur in the frame of human rights or related themes. Rather, My Lai is frequently invoked where growing American doubts about the war are articulated. The following quotation from the 1981 edition of The National Experience: A History of the United States primarily presents the judicial narrative, but it also alerts students to challenges to that account: People watched with growing discomfort as the tiny screen showed Vietnamese children horribly burned by American napalm or Americans systematically setting fire to Vietnamese villages. The disclosure that American soldiers had massacred more than a hundred unarmed Vietnamese civilians at My Lai in March 1968 made war atrocities a national issue. The subsequent arrest and conviction of Lieutenant William F. Calley, Jr., produced strong if confused reactions. Some defended Calley; Nixon interceded sympathetically on his behalf. Some thought it unfair that Calley should be the only man convicted for the massacre. Some demanded the prosecution of top military and civilian leaders as war criminals. Whatever else, My Lai forced many Americans suddenly to see the war from an appalled new perspective, to wonder if the United States had not brutalized itself in Vietnam, and to conclude that the means employed and the destruction wrought had grown out of all proportion to the interests involved and the goals sought. (Blum 1977, 793–4)

The conviction of Lieutenant Calley is obviously reported. But so are the challenges, directed at the individualizing and decoupling nature of the legal narrative. Responsibility is so widely diffused that individual responsibility is no longer recognizable. However, demands are cited to attribute liability to Calley’s superiors along the military and civilian hierarchy, though each of these potential challenges is limited to one sentence. The narrative then moves away from the massacre to speak critically to the war’s consequences for the United States.

How Do Americans Feel About Their Military Four Decades After My Lai? How does the mix of silencing and selective accounting in American textbooks and the references in the reporting of one of the most prominent and generally liberal newspapers, the New York Times, affect the

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lived collective memory of the American people? While a satisfactory answer to this question awaits future survey research, existing data provided by the International Social Survey Programme show that the brutalities of the war have certainly not inflicted any enduring damage on the standing of the American military in public opinion or national pride generally.22 While Americans are a world leader in national pride (competing only with Venezuelans for that position), domain-specific data show that part of this position derives from the population’s pride in its armed forces. When asked in 2004, “How proud are you of America in each of the following?” almost three-quarters (73.5 percent) of a representative sample of Americans expressed pride in “America’s armed forces.” This compares with around one-third who answered “the way democracy works” (32 percent) and “America’s economic achievement” (38.3 percent) and somewhere between one-half and two-thirds who acknowledged “its scientific and technological achievements” (57.1 percent) and “its history” (60.6 percent). No other nation shows this level of pride in its military. While some of this extraordinarily high esteem of America’s military, measured three years after 2001, may be a result of the trauma of the September 11 attacks, the fight against terrorism, and the ongoing war in Iraq, 1996 domain-specific measures also show the military’s esteem to be at a very high level, with slightly more than 47 percent holding this view, tied for second place with “America’s history” and only slightly lower than “its scientific and technological achievements” (48.6 percent).23 Longer term trends show that the military has held a leading position in public opinion for many decades, albeit at a lower level than today, and that its position has strengthened in the past two decades. During the 1970s and much of the 1980s a nationally representative sample of respondents, when expressing “a great deal of confidence” in diverse institutions, put medicine in the lead, with between 50 and 60 percent in most years, while religion and the military competed for second place (between 30 and 40 percent, respectively, in most years). Yet around 1990 the military experienced a tremendous rise in “confidence” to finally become the leading domain by the middle of the first decade of the twenty-first century. Public regard for medicine, religion, the press, and Congress declined throughout most of the study period.24 While the lessons from My Lai thus do not appear to have had a strong or enduring effect on the American public’s esteem for the military, they also seem to have had little effect on the mindset of the American military until recently, with the war in Iraq. A report released by the U.S. Army in the fall of 2006 shows that more than one-third of soldiers believe that torture should be allowed if it helps gather important information about insurgents—despite the illegality of torture in

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international law. Two-thirds of marines and half of army troops respond that they would not report a team member for mistreating a civilian or for destroying civilian property unnecessarily.25 Changes in public attitudes toward the Vietnam War are also reflected in the renewed prominence of war memorials, including memorials of the Vietnam War. For instance, in St. Paul, the capital of Minnesota, a memorial was established in 1992 at the foot of the hill that is crowned by the magnificent State Capitol. The memorial attempts to reconcile mourning with the reaffirmation of honor for those who served in Vietnam. A quote from the memorial’s website states that the Minnesota Vietnam Veterans Memorial “was designed to express honor and remembrance, while acknowledging valor and service, and affirming the need to grieve as well as to experience an earlier time of innocence before the war. It was designed also to remind us that the price of war is high: young men and women die, and others have their lives forever altered.”26 Grief is clearly a central component of this memorial. At the same time, the reaffirmation of honor, valor, and service are highlighted, while the context of a problematic war is not articulated. Consider also previous research on the changing character and uses of the Vietnam Veterans Memorial in Washington, D.C.27 An influential article published in 1991 in the American Journal of Sociology provides a detailed analysis. It describes how the somber appearance of the horizontal, black-marble memorial, dug deep into the earth in which those are buried whose names are engraved, was partially neutralized by the later erection of a massive flag post and a realist bronze statue of three soldiers. Visitors to the memorial also contribute to the change in appearance. To be sure, thousands have reinforced the original somber mood with the tears they shed when facing the dark marble wall and the engraved names of their loved ones. Simultaneously, however, visitors have displayed thousands of items, including patriotic symbols that are regularly collected by the park service and stored in archives. These changes and uses move the appearance of the memorial closer to the traditional heroic, rather than mournful, commemoration of past military engagements. They provide another expression of the shifting ways in which the Vietnam War has been remembered, away from a shameful and primarily mournful chapter of American history, in which the lives of so many young men were sacrificed on the altar of highly controversial political philosophies, toward a glorified and patriotic engagement. Not surprisingly, today we even find political candidates who pretend that they fought in Vietnam, in the belief that such lies will improve their chances of getting elected.28 American remembrances of American warfare contrast strangely with epochal changes diagnosed by prominent historians. Such schol-

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ars describe a shift from commemorating the experience and suffering of soldiers in the battlefield, characteristic of World War I remembrance, toward a focus on civilian victims during the post–World War II era.29 Official American remembrance of the Vietnam War instead continues to highlight the suffering (and valorize the service) of common soldiers. American war memorials certainly neglect the civilian victims of American warfare. One possible explanation is that American wars since the Civil War have not typically involved American civilian victims.30 Yet this chapter confirms the Yale historian Jay Winter’s (2006, 282) conclusion that the civilian victims’ “words appear in [such sites as] tribunals [or] in commissions of inquiry,” mechanisms—albeit selective ones—to keep alive some memories of some of the civilian victims of American atrocities.

Conclusions and Implications The My Lai massacre, the ways it was culturally processed, and the patterns of its remembrance in decades since fill one important cell in the analytic field laid out at the beginning of this volume (see table 1.1). It speaks to American memories of cases in which domestic courts respond to an atrocity. It concurrently, and not coincidentally, addresses a type of case in which only relatively low-ranked military personnel are found guilty in the court of law. How then do expectations vis-à-vis My Lai, and theoretical arguments regarding the ritual power of law—and its institutional selectivities—hold up in this case? It seems clear that the trial against a group of military men involved in the My Lai massacre did not succeed in securing confirmation of initial predictions by prominent intellectuals and highly visible media. Profound changes in the American collective conscience did not materialize. At first glance, this appears to conflict with Durkheimian expectations regarding the ritual power of trials. We do not know, though, how much of the event would be reported in textbooks and media had there been no criminal trial; empirically assessing the counterfactual in this case is not possible. Some might argue, of course, that the event is appropriately played down, as it should not overshadow the otherwise brave and flawless performance of American soldiers in Vietnam. Yet reports from participants such as the Marine lieutenant Philip Caputo, a Vietnam veteran, challenge that assumption.31 They are supported by other sources that suggest, in the words of Randall Collins’s (2008, 88) seminal book on violence, that “incidents of this type [My Lai] were fairly common in the Vietnam war. . . . At a minimum these were orgies of destruction, vandalism on an extreme scale.”32

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One of our specifications of the Durkheimian thesis, however, is confirmed: Wherever trials seek to attribute guilt to selected low-level frontline agents in the perpetration of atrocities, potential effects of law on the formation of collective memory are undermined. In the My Lai case, the court’s conviction and sentence to life in prison with hard labor was already disputed in the public sphere when it was passed, and politicians responded to such challenges, including several governors and state legislatures, President Nixon, and Howard Callaway, secretary of the Army. A series of decisions resulted in William Calley being moved from prison to house arrest and in his sentence being reduced first to twenty years and later to ten years. In 1974 he was released after serving three and a half years of house arrest and received a limited presidential pardon. It is conceivable that the public uproar was a protest against the individualizing (or decoupling) function of criminal law.33 Another thesis, derived from Weberian insights into the specific logics of distinct institutional spheres, is also confirmed and simultaneously supports ideas about the cultural power of legal trials: Our analysis reveals a narrative of the My Lai events that more often than not closely reflects the historical account as established through judicial proceedings. Clearly, textbook narratives that do account for the My Lai massacre focus on Lieutenant Calley, the lone convict in the My Lai trial; the offenses committed directly under his command; and the number of victims killed directly through the mass execution he ordered. Competing narratives from the Peers Commission report and Seymour Hersh’s book are not absent, but they are underrepresented for most of our analytic categories. While they indicate how law as a constitutor of history must compete with other institutions, law’s dominant position is confirmed in the case of My Lai. In short, the My Lai massacre, committed by American soldiers in the course of the Vietnam War, did not affect the telling of American history and the public esteem of the American military as profoundly as some had expected at the onset of the 1970s. To the degree to which powerful social actors have an interest in the untarnished reputation of the American military, the finding supports presentist claims regarding the cultivation of collective memory that had been so influentially made by Maurice Halbwachs. For now the question is raised as to how the processing of the My Lai massacre colors the depiction of mass killings in more recent wars. We set out to examine this question for one particular case, the killing of many unarmed civilians, including women and children, in the town of Haditha in the course of the Iraq War.

Chapter 4 From Vietnam to Iraq: Bridging Metaphors, Mnemonic Struggles, and Haunting WITH JEREMY

I

MINYARD

N THE preceding chapter we showed a cleansing of American memories of atrocities committed by members of the country’s military during the Vietnam War, especially the My Lai massacre. The reputation of the military, already protected by the court’s attribution of guilt to a single lieutenant, the leader of a platoon within one company, continues to appear relatively untarnished. Approval ratings of the military also remain high. This constellation of memories and attitudes became most relevant, visible, and consequential as the United States engaged in a series of new wars in the late twentieth and early twenty-first centuries. The Gulf War of 1991 had been relatively short, with a clear and limited military mission and a victorious outcome. Almost a decade later, responding to the 2001 terrorist attacks targeting New York City and Washington, D.C., the United States responded with military force, first in Afghanistan, where the Taliban regime had provided the Al Qaeda terrorist organization with a safe haven. This war received broad approval, domestically and internationally, with doubts spreading only in the past few years. Yet since March of 2003, the United States has also been involved in a war and occupation in Iraq. The justifications for this war were indeed contentious, the entire effort largely resting on a disputed claim that Iraq possessed and was ready to use weapons of mass destruction along with the second Bush administration’s dubious attempts to link Saddam Hussein to Al Qaeda. At least partly owing to public doubts about these justifications for the military campaign, which were enhanced by the initially chaotic situation and massive violence accompanying the first years

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of occupation, the Iraq War has had tenuous and variable support from the American people. Its legitimacy has also faced considerable challenges internationally. For many in the American media and public at large, the Iraq War conjures memories of the largely unpopular U.S. war in Vietnam, despite large differences in the number of soldiers deployed and killed and the duration of the conflicts. Descriptive terms such as “quagmire” that had lain dormant since Vietnam resurfaced in many reports from the Iraqi war zone.1 These memories of Vietnam both inform and limit the public’s understanding of the Iraq War. In a survey of a cross-section of Americans in five states in December of 2004 and July of 2005, about two-thirds of respondents likened the Iraq War to the Vietnam War rather than to World War II. The latter, as opposed to Vietnam, had a clear justification and ultimately a victorious outcome.2 Yet in line with our arguments about the group-specific nature of collective memory, this view was not unanimous. Republicans, for example, were almost evenly split, likening the Iraq engagement as much to World War II as to Vietnam. Furthermore, the youngest cohorts were more likely to mention World War II as an appropriate comparison than were those who were alive during the Vietnam War, indicating that the consternation surrounding the Vietnam War is not firmly settled in the collective memory of younger cohorts. Even those who likened Iraq to Vietnam were not of one mind. While the American failure to achieve its objectives in Vietnam and the eventual withdrawal of troops made it a useful analogy for those who opposed the Iraq War and preferred the withdrawal of American troops from Iraq, others used Vietnam’s legacy to encourage persistence. For them, Vietnam was evidence of the potentially tragic consequences of domestic opposition to an ongoing war and failure to adequately commit to a mission. Debate over the Iraq War and references to historic wars provide an opportunity to contribute to a number of themes addressed here and to answer further questions raised in this book. The concepts introduced in earlier chapters can be put to fruitful use as we seek to understand the processing of present-day conflicts in light of the past. Here we see mnemonic struggles unfolding in real time, those fights over the interpretation of the past in light of conflicting present-day political interests. Furthermore, bridging metaphors are again deployed, those attempts at using past events metaphorically to color our interpretation of later occurrences. The concern with bridging metaphors here resonates with work by the sociological theorist Jeffrey Alexander, who has shown that use of the Holocaust as a bridging metaphor by journalists and political leaders helped mobilize opposition to Serbian dictator Slobodan Milosevic.3 By connecting the traumatic memory of the Holocaust and associated ideas

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about the necessity of intervention in mass atrocities to the issue of intervention in Serbia, actors shaped the way a current event was understood. In doing so, they effectively overcame political obstacles on the path toward military and judicial intervention. Different societal arenas lend themselves to the introduction of bridging metaphors as they respond to highly visible events. These societal arenas include the public sphere, with its commemorations and special institutions and with such actions as legislative debates and court trials, which might be thought of as “applied commemorations.” One incident during the Iraq War lends itself to an examination of the use of bridging metaphors in mnemonic struggles over war and atrocities: the killing of a large number of civilians in the small town of Haditha in the Al Anbar province of western Iraq in November of 2005. This event not only evoked massive public debates; it also resulted in the initiation of courts-martial against several members of the military involved in the incident. The public debate about both the event and the trial invoked references to My Lai as a bridging metaphor, and it clearly represented a mnemonic struggle. This chapter examines this struggle by analyzing the different ways in which mass media of distinct political leanings handled the issue. Furthermore, the trial inspired social movement activity in support of soldiers involved in the Haditha incident. We use such movement activity to illustrate ways in which trials can generate conflicting responses to interpretations of the past and link collective memories to events of the present. Such responses are likely to alter the effects that trials and other applied commemorations have on the construction of collective memories. In addressing the Haditha incident we examine the recent and ongoing cultural and legal processing of a mass killing committed by U.S. soldiers, a case that may or may not feed into future remembrances. We thereby continue to move in the same cell of our analytical scheme (table 1.1): the study of American memories of American killings of civilians, processed in domestic courts. We go beyond the previous chapter, though, as we examine the effect of collective memories of past atrocities, specifically My Lai, on the processing of later events. We also shift the time horizon to investigate present-day constructions. In our closing comments, we suggest one additional lens through which affective components of memory may be effectively addressed: a process that anthropologists and others have captured in the concept of haunting.4

The Haditha Incident The United States–led invasion of Iraq that began on March 20, 2003, resulted in the eventual removal from power of Saddam Hussein and an

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ongoing U.S. occupation. The fighting in Iraq became a battle against an insurgency that blended in with the rest of the Iraqi citizenry and attacked with ambushes and homemade bombs. Only in 2009 did a substantial pacification unfold. One incident in the early phase of the occupation was the violent deaths of a large number of Iraqi civilians at the hands of the U.S. military. The initial reports of the incident are the result of journalistic work, first by Time magazine journalist Tim McGirk in a 2006 report (“Collateral Damage or Civilian Massacre in Haditha,” Time, March 19, 2006) and later in a detailed report on CBS’s 60 Minutes, partly confirmed by various sources, partly debated to this day. What, then, occurred in Haditha during that fateful, but not atypical, period of August through November of 2005? Many journalists begin the sequence of events on August 8, when fourteen marines were killed by a roadside bomb near Haditha (Wuterich 2007). A little more than two months later, on November 19, a four-vehicle convoy of marines from First Squad, Third Platoon, Company K, Third Battalion, First Marine Regiment, First Marine Division was traveling through Haditha when the fourth and final truck of the small convoy was struck by an improvised explosive device (IED; McGirk, “Collateral Damage or Civilian Massacre”). The truck was destroyed; one marine, Lance Cpl. Miguel Terrazas, was killed; and two others were wounded. The marines also reported receiving small arms fire after the explosion, to which they forcefully responded. By the end of the engagement, U.S. marines had killed twenty-four Iraqi civilians. The marine unit involved in this incident was made up mostly of Iraq War veterans on their second or third tour of duty. The squad leader, however, was Staff Sergeant Frank Wuterich, a marine near the end of his service. The engagement at Haditha on November 19 would be Wuterich’s first combat experience (Wuterich 2007). Once the marines had tended to their wounded comrades, Wuterich immediately began looking for the “trigger man” who had set off the explosion (Wuterich 2007). He did not have to look far. A short distance up the road, he noticed a white car carrying five young Iraqi males. Four of the men were students on their way to school, and the fifth was the cab driver who was taking them there (David S. Cloud, “Contradictions Cloud Inquiry into 24 Iraqi Deaths,” New York Times, June 17, 2006, A1). In broken Arabic, Wuterich ordered the men to get out of the car, and one of the other marines instructed them to get on the ground (Wuterich 2007). When the men did not obey instructions, Wuterich shot and killed all five (McGirk, “Collateral Damage or Civilian Massacre”). He reported that the men were attempting to run, but this point has been disputed by other witnesses, both American and Iraqi. A photograph taken at the scene, supposedly of the bodies of the five men lying where they fell, shows that none of the five was more than a few feet from the car when shot (Wuterich 2007).

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After killing the five men in the taxi, Wuterich and his men perceived small arms fire coming from the direction of a nearby house (Wuterich 2007). When Wuterich’s superior officer, Lt. William Kallop, arrived on the scene a few minutes later, he agreed that the men should assault the house in question (“What Happened at Haditha,” Wall Street Journal, October 19, 2007, A18). Over the next few hours, the marines entered four houses near the site of the explosion. There, they killed another nineteen Iraqis, mostly women, children, and elderly men. They found no weapons in the first three houses but confiscated two assault rifles from the fourth (McGirk, “Collateral Damage or Civilian Massacre”). The marines claimed that they first cleared the houses primarily by throwing grenades through any doors behind which they heard threatening sounds, then entered the rooms and terminated any remaining threats (Wuterich 2007). However, Iraqi witnesses disputed this claim, stating that the marines entered the rooms and shot their targets with full knowledge that they were killing women and children (McGirk, “Collateral Damage or Civilian Massacre”). An Iraqi doctor on duty that night at the morgue to which the corpses were taken confirmed that the bodies had few shrapnel injuries, as one would expect from an IED or grenade blast. Instead, most of the dead appeared to have been shot in the head or chest at close range (McGirk, “Collateral Damage or Civilian Massacre”). U.S. government experts investigating the incident have reached the same conclusion (Paul von Zielbauer, “Forensic Experts Testify That 4 Iraqis Killed by Marines Were Shot from a Few Feet Away,” New York Times, June 15, 2007, A10). The next day, the marines issued a preliminary report claiming that on November 19 an IED killed one marine and fifteen Iraqi civilians and that U.S. and Iraqi forces killed eight insurgent combatants in a subsequent firefight. That next day, November 20, an Iraqi videotaped the scene of the killings and the morgue to which the bodies of the victims had been carried. This tape was obtained by the Hammurabi Human Rights Group and eventually found its way into the hands of the American journalist Tim McGirk. After viewing the tape, McGirk went to Haditha to interview Iraqi witnesses to the killings. He shared the tape and the testimony of witnesses with marine spokesman Col. Barry Johnson, who recommended a full investigation (McGirk, “Collateral Damage or Civilian Massacre”). The first media reports of the investigation appeared on March 16, 2006, and many political leaders and journalists began to make strong statements about the incident (McGirk, “Collateral Damage or Civilian Massacre”). These included media descriptions of the event as a “massacre” and U.S. representative and Vietnam veteran John Murtha’s claim that marines had killed innocent civilians “in cold blood” at Haditha (“What Happened at Haditha,” A18). The Naval Criminal Investigative

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Service delivered its report on the Haditha incident to Lt. Gen. James Mattis in August of 2006, and on December 21, 2006, the Marines Corps filed charges of unpremeditated murder against four enlisted men, including S.Sgt. Wuterich, and dereliction of duty for failure to adequately investigate against four officers (Paul von Zielbauer and Carolyn Marshall, “Marines Charge Four with Murder of Iraqi Civilians,” New York Times, December 22, 2006, A1). Since these charges were filed, the prosecution’s case has largely disintegrated. Although none of the Haditha cases has gone to trial, there has been a long series of legal proceedings. These have mostly taken the form of Article 32 investigations, the military justice equivalent of a grand jury. In these hearings, the evidence against the accused is presented to a military judge who recommends either proceeding to trial or dropping charges, depending on whether the judge believes there is enough evidence to convict. The commanding general, in this case Lt. Gen. James Mattis, decides whether or not to proceed to court-martial. Charges against three of the enlisted men and two of the officers have been dropped, and S.Sgt. Wuterich is the only marine still facing homicide charges, though the investigator in his case has stated that the prosecution would be unlikely to prove any charges greater than negligent homicide (“What Happened at Haditha”). There are numerous possible explanations for the collapse of the government’s case. First of all, it is unclear whether the marines definitely knew they were killing innocent civilians as opposed to responding to a perceived threat. These men may have been acting in the only way possible in an environment in which “hesitation equals getting killed” (Wuterich 2007). Second, the marine investigators have been skeptical about the accuracy of the testimony of Iraqi witnesses. Finally, the lack of the kind of photographic evidence available in the My Lai case has caused the hearings to come down to a credibility contest between witnesses (Paul von Zielbauer, “The Erosion of a Murder Case Against Marines in the Killing of 24 Iraqi Civilians,” New York Times, October 6, 2007, A8). The one video of victims in the morgue was discredited by military reports early on. Those sources claimed links between Taher Thabet, the Iraqi who made the video, as well as the Hammurabi Human Rights Organization, to which Thabet belonged, and Iraqi insurgent groups. No independent assessments of such allegations are known.

Conflicting Reports How was the Haditha incident depicted in American media of different political leanings, and what role did reference to My Lai play in these depictions? Data suited to answer this question come from news reports

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and editorials about the Haditha incident and investigations published in three major American news sources: the New York Times, the Wall Street Journal, and Time magazine.5 We conducted content analysis of all articles with a reference to Haditha published by these three sources from the date of the Haditha incident, November 19, 2005, until April of 2008. A ProQuest search of New York Times and Wall Street Journal articles identified 123 and 38 entries, respectively.6 A search of the Time magazine online database identified 47 relevant items.7 The total population of printed documents thus consists of 208 articles, columns, and letters to the editor. Being especially concerned with identifying those articles within this population that made reference to the My Lai massacre, we undertook three steps. First, we identified and described the ways in which My Lai was discussed in Haditha coverage and the uses of such references. In particular, we were interested in whether My Lai was used as a bridging metaphor by journalists covering Haditha, as well as whether this bridging metaphor was used to analogize or distinguish the My Lai and Haditha cases. Second, we identified the institutional source of the My Lai narrative presented in each commemoration to determine the extent to which the judicial, political, or journalistic narrative of My Lai was represented in activations of collective memory of My Lai. Third, we considered shifts in the content of applied commemorations of My Lai over the course of the Haditha investigation. We were especially interested to see whether the timing of such shifts coincided with stages of the legal process, suggesting an impact of legal proceedings on the construction of collective representations and memories. We coded any reference to My Lai or the principal individuals involved in the My Lai case within the context of a report or opinion piece on Haditha. In general, the proportions of Haditha articles containing references to My Lai are not high: of the 123 New York Times articles on Haditha, only 10 mention My Lai (8.1 percent), compared with 6 of the 47 Time articles (12.8 percent) and 3 of the 38 Wall Street Journal articles (7.9 percent). While references to My Lai are thus relatively infrequent, the proportions are fairly consistent across the three news sources, and no other event is referenced in Haditha reports nearly as often as My Lai. Each article containing a reference to the atrocities of My Lai then underwent in-depth content analysis. We sought to identify cases in which the use of My Lai can be considered a bridging metaphor and the ways in which that bridging metaphor was used. We then coded the articles for the particular My Lai narrative—judicial, political, or journalistic—reflected in the content of the applied commemoration. Finally, we compared dates of publication for each article with the timeline of the Haditha investigation and legal hearings.

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Linking and Unlinking Haditha and My Lai Of the sample of 208 articles, 19 contain references to the My Lai massacre. In each of these, the reference is used as a bridging metaphor that compares or contrasts the Haditha event, which we, as readers, do not yet know about, with one we are expected to be familiar with, My Lai. The ways in which the bridging metaphor of My Lai is used are varied, and 2 of the 19 articles were coded as containing more than one of the uses identified. Five items use the bridging metaphor of My Lai to establish that Haditha is an example of the same phenomenon, a massacre of innocent civilians committed by out-of-control U.S. troops. Three articles link My Lai and Haditha to demonstrate a connection between the broader contexts of the Vietnam and Iraq Wars. Seven articles use the link between Haditha and My Lai to predict the consequences of Haditha for the Iraq War by describing the consequences of My Lai for the war in Vietnam. Finally, six items use the bridging metaphor of My Lai to show that Haditha is not an example of the same phenomenon and that analogies between the two events are false. These uses of My Lai are not evenly spread across the three news sources examined, a first indication of the importance of political affiliations involved in this unfolding mnemonic battle. For instance, all of the articles that link My Lai and Haditha as examples of the same phenomenon appear in the New York Times, while all articles that use the link between Haditha and My Lai to connect Iraq and Vietnam appear in Time. The diversity of uses suggests the further specification of the tool of bridging metaphors into four subtypes: mimetic bridging, prognostic bridging, contextual bridging, and bridging challenge.

“A My Lai Acid Flashback”: Mimetic Bridging Several writers use references to My Lai as a means of establishing that Haditha and My Lai are instances of the same type of phenomenon. A June 2006 letter to the editor of the New York Times describes Haditha as a “21st century equivalent of My Lai” (Syed M. Majid, June 6, 2006, A20). The writer argues that Haditha is “equivalent” to My Lai, ignoring the fact that the details of the cases differ substantially, particularly in terms of the scale of the killings and the occurrence of other crimes at My Lai. Similarly, Maureen Dowd, a regular columnist for the Times, uses her col-

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umn to describe Haditha as a “My Lai acid flashback” (“Don’t Become Them,” New York Times, May 27, 2006, A13). The Haditha incident, in her mind, evokes bitter memories of the images of the My Lai massacre in the late 1960s. Other writers provide more explicit explanations of how and why Haditha evokes memories of My Lai. A July 10, 2006, New York Times opinion piece by Bob Herbert (“A Vietnam Lesson, Unlearned,” A17), for example, describes his reaction to the accusations against American marines, including “slaughtering 24 Iraqis, including women and children . . . a case that in its horror . . . recalls the My Lai massacre of Vietnam.” An earlier New York Times report from May 30, 2006, discusses the impact of evidence of “execution-style killings, including gunshots to the head. As more details about the Haditha . . . incident surface, [the incident] has conjured disturbing memories of the My Lai massacre in Vietnam for many former marines and in other circles of war veterans” (Carolyn Marshall, “On a Marine Base, Disbelief over Charges,” New York Times, May 30, 2006, A11). A Navy veteran quoted in the report saw a different connection between the Haditha investigation and the My Lai trials: “The young guys took the heat for the higher-ups there too” (Marshall, “Disbelief over Charges,” A11). We refer to this type of reference to a past event as mimetic bridging, indicating an attempt to establish the similarity between the past and the current event.

From Infamous Places to Contentious Wars: Contextual Bridging Other writers use the bridging metaphor of My Lai in their discussion of Haditha as a way to link the contexts of the Iraq and Vietnam Wars. These writers may draw very different conclusions though, as illustrated by two articles from Time magazine. In the June 12, 2006, issue of Time (“Rules of Engagement,” 42), Reuel Marc Gerecht writes, “We have done terrible things—in World War II, the Korean War, Vietnam and now, it strongly appears, in Haditha in Iraq.” However, he is quick to point out that “these dark moments—indiscriminately bombarding German civilians in World War II, mowing down Vietnamese peasants at My Lai—do not necessarily diminish the rightness of the cause for which we fight.” Gerecht thus argues that though Haditha is, indeed, a dark moment, such moments have occurred throughout U.S. military history. Gerecht believes it is important to view these incidents as exceptions to the rule and not let them tarnish memories of the broader context and justifications of war. In the same issue of Time, Michael Duffy (“The Shame of Kilo Company,” 32) writes about the connection between the Iraq and Vietnam contexts in a very different way. He sees Haditha and My Lai as evidence of the failings of the military command structure in both the Iraq and

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Vietnam conflicts. “So why did some men in Kilo Company apparently snap? Perhaps because of the stress of fighting a violent and unpopular war—or because their commanders failed them. Military psychiatrists who have studied what makes a soldier’s moral compass go haywire in battle look first for a weak chain of command. That was a factor in the March 1968 My Lai massacre in Vietnam, when U.S. soldiers, including members of an Army platoon led by Lieut. William Calley, killed some 500 Vietnamese.” Duffy thus reminds the reader of the circumstances of My Lai and the Vietnam War, especially problems with the organizational context of the fighting units, conditions that were diagnosed by the Peers Commission and Seymour Hersh’s journalistic accounts and have been accepted by many as explanations for that massacre. He further suggests that the Haditha incident constitutes evidence of similar conditions in the present conflict in Iraq. We call this way of drawing parallels to the past contextual bridging, as the focus is on the context of the incident in question more than on the incident itself. In other words, it is about the war at large, not a specific alleged atrocity.

Common Consequences: Prognostic Bridging The most frequent references to My Lai predict consequences the Haditha incident might have on the Iraq War, particularly in terms of public support. A New York Times report quotes Senator John McCain, who states that the event is reminiscent of the My Lai massacre, adding that “it certainly is harmful, but I can’t assess the extent of the damage” to support for the Iraq War generally (Richard A. Oppel, “Iraqi Accuses U.S. of ‘Daily’ Attacks Against Civilians,” New York Times, June 2, 2006, A1). Another Times article argues that “the politics surrounding the war are likely to become more volatile with disclosures about alleged killings of Iraqi civilians by marines in Haditha, a case that has prompted comparisons to the My Lai massacre in the Vietnam War” (Adam Nagourney, “Votes on Iraq War Put Senators at Disadvantage in ‘08,” New York Times, June 2, 2006, A18). One Wall Street Journal article critically assesses the way journalists have connected My Lai and Haditha. Its author suggests that these journalists seek to use the bridging metaphor to provoke specific political consequences: “My Lai significantly altered the political status of Vietnam in the U.S. . . . So it is only natural that the My Lai template, however ill-fitting, would be pressed against Haditha to see if this one lurid story would break the back of the entire Iraq enterprise” (Daniel Henninger, “Wonder Land: U.S. Soldiers Aren’t Guilty Before a Verdict,” Wall Street Journal, July 7, 2006, A12). Some reports explore potential political consequences specifically from the perspective of military leaders. According to a June 12, 2006, Time mag-

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azine report, “To some U.S. officers, the impact of the daily stream of accusations about the actions of the men of Kilo Company is conjuring up comparisons with the blow from the country’s most searing example of battlefield misconduct, the My Lai massacre of 1968” (Michael Duffy, Tim McGirk, and Aparisim Ghosh, “The Ghosts of Haditha,” Time, 29) Another Time article describes the reaction of one officer in greater detail: It’s a disorienting time for the U.S. Marine Corps in the wake of the alleged massacre of civilians in the Iraqi town of Haditha. One senior Marine officer, for example, is spending his days with grim reading, as Congress, the Pentagon and the press investigate charges that the Marines were responsible for the deaths of some two dozen Iraqi civilians. He has gone through Congressional reports about the My Lai massacre. He has read America in Vietnam by Guenter Lewy. . . . This officer knows that the entire Marine Corps will be hard hit if the Haditha allegations are true. (Sally B. Donnelly, “After Haditha: What Makes Top Marines Worry,” Time, June 2, 2006, online)8

Thus military commanders must be prepared to deal not only with enemies on the battlefield but also with the perceptions of the American public. A basic knowledge of the commonly held understandings of My Lai is essential for these actors to predict how the public will respond to Haditha. This form of bridging may be best referred to as prognostic bridging as it deals with likely future consequences of events that are considered similar. Here, political consequences are the focus of attention, but different kinds of consequences may be highlighted in other cases.

Disconnecting Haditha from the Memory of My Lai: Bridging Challenges Several articles on Haditha reference My Lai to distinguish the events and undermine the connection made by other commentators on Haditha. A Wall Street Journal report claims that “the casualties have drawn an extraordinary amount of political attention, becoming an emblem for everything critics say is wrong with the Iraq war—in the common telling, another My Lai” (“What Happened at Haditha,” October 19, 2007, A18). The author goes on to criticize this “common” account of Haditha and those that have created it. In the June 12, 2006, issue of Time magazine (“Rules of Engagement,” 42), Gary Solis argues that “even if proved, Haditha is no My Lai, with its victims in the hundreds, attendant sexual crimes, direct officer involvement and high-level cover-up by a dozen officers, including colonels and generals.” These writers invoke the memory of My Lai and carefully distinguish it from Haditha to establish clearly that Haditha is not the same type of event as My Lai. In “A Marine Tutorial on Media Spin,” Paul von Zielbauer describes a memo produced by Lieutenant Colonel Jeffrey Chessani, Major Nathan Gonzalez, Captain Lucas M. McConnell, and First Lieutenant Adam

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Mathes in response to Tim McGirk’s initial inquiries into the Haditha incident. This memo was introduced as evidence at a hearing for one of the accused officers and provides some insight into the importance of the memory of My Lai and its investigation for guiding the actions of the marine officers accused of covering up the Haditha incident. Rather than answer McGirk’s questions, the memo describes the “sneaky tactics” of reporters and the ways in which the questions are an attempt to characterize Haditha as the Iraq War’s My Lai: “One common tactic used by reporters is to spin a story in such a way that it is easily recognized and remembered by the general population through its association with an event that the general population is familiar with or can relate to. For example, McGirk’s story will sell if it can be spun as ‘Iraq’s My Lai massacre.’ Since there was not an officer involved, this attempt will not go very far” (quoted in Paul von Zielbauer, “A Marine Tutorial on Media Spin,” New York Times, June 24, 2007, C5). The memo also identifies the absence of an officer during the killings as a reason why Haditha must be distinguished from My Lai and why the My Lai connection ultimately fails to define Haditha. Rather than likening Haditha to My Lai, these articles cite the bridging work done by others in order to challenge the metaphor. We call this type of argument a bridging challenge.

My Lai Narratives in Haditha Reporting The references to My Lai that appear in media coverage of the Haditha incident and investigation are usually brief. Reports often do no more than mention My Lai, assuming that the reader knows enough about the event to understand its importance to the discussion of Haditha. Others provide a brief summary of the My Lai massacre or the court-martial of William Calley. These reports rarely provide enough information to identify one of the particular narratives of My Lai distinguished in chapter 3. The most common distinguishing element is the number of victims reported. Two reports describe the My Lai massacre as an attack that claimed more than five hundred victims (Michael Duffy, “The Shame of Kilo Company,” Time, June 5, 2006; Michael Duffy, Tim McGirk, and Bobby Ghosh, “The Ghosts of Haditha,” Time, June 12, 2006). Solis’s description of My Lai in Time (“Rules of Engagement,” June 12, 2006) claims “victims in the hundreds, attendant sexual crimes, direct officer involvement and high-level cover-up by a dozen officers, including colonels and generals.” Such depictions are based on past journalistic narratives of My Lai but also on the diagnosis presented in the Peers Commission report. While none of the articles clearly reflects the judicial narrative, one does indicate the importance to the writer of the legal evaluation of the incident, arguing that “the Marines implicated in the Haditha incident are

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largely anonymous now, but each is being auditioned to play this war’s Lt. William Calley. But first they have to be convicted of something” (Henninger, “Wonder Land”). The focus on the journalistic narratives should not be surprising given that the data in this analysis come from journalistic accounts, and the journalistic account of My Lai is the most shocking and provocative of the different institutional narratives.

Influence of the Legal Process The influence of the legal process partially reveals itself in the timing and content of reporting about Haditha. Media reports about Haditha that contain references to My Lai appear almost exclusively during a period stretching from May to July of 2006: sixteen of the nineteen articles (84.2 percent) that reference My Lai were published during this period. This was a time when the accusations were still fresh, as the details of the civilian deaths began to come to light in March of that year, especially through journalistic reports. The Marine Corps had not released the results of their investigation at that time, and the charges against the accused marines were still months away. The construction of the Haditha incident during the summer of 2006 showed clear parallels to the acknowledged facts of the My Lai massacre, but that image would change after months of hearings and testimony of the accused. The New York Times reports most clearly demonstrate the influence of the legal process on the content of My Lai commemorations. Only the three most recent New York Times items contain bridging challenges. This group includes the only two reports published after the pretrial hearings for the accused marines had begun on May 8, 2007. The most recent New York Times article to refer to My Lai illustrates the effect of the hearings on the Haditha–My Lai connection: Last year, when accounts of the killing of 24 Iraqis in Haditha by a group of marines came to light, it seemed that the Iraq war had produced its defining atrocity, just as the conflict in Vietnam had spawned the My Lai massacre a generation ago. But on Thursday, a senior military investigator recommended dropping murder charges against the ranking enlisted marine accused in the 2005 killings, just as he had done earlier in the cases of two other marines charged in the case. The recommendation may well have ended prosecutors’ chances of winning any murder convictions in the killings of the apparently unarmed men, women and children. (von Zielbauer, “Erosion of a Murder Case,” October 6, 2007, A8)

Obviously, as the facts of the Haditha incident are adjudicated and distinctions between Haditha and My Lai are publicly drawn, references to My Lai do not cease. Yet My Lai no longer serves as a mimetic, contextual, or prognostic bridge; rather, the purpose of the comparison shifts from

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analogizing the two cases to distinguishing them—that is, toward bridge challenging. It is not the task of social scientists to adjudicate adjudication. It is, however, our task to seek to explain the outcome of legal processes. Legal literalists would likely point to the nature of evidence that challenged parallels between Haditha and My Lai. They would argue that the case of Haditha did not allow for the production of sufficient evidence. Yet a sociological perspective on law will ask what evidence was produced by whom and was awarded what weight.9 It will ask for the social structure of the case and, based on that structure, predict the outcome of the legal process. In the case of Haditha, social movements, partly inspired by the legal process itself, played a central role. Their involvement apparently strengthened the perspective of the defense.

Social Movements and Mnemonic Struggles: Contesting Legal Narratives Since the Haditha investigations began, much support for the accused soldiers has been expressed by those opposed to the portrayal of the events in mainstream media. Media have also communicated the voices of the accused themselves to a broad public. Yet statements from prosoldier actors appear most often on websites devoted to supporting the accused marines or as comments posted in response to online news stories. Many of these statements directly attack accusatory media reports or statements of politicians and other public figures who oppose the war in Iraq. The late U.S. representative and former marine John Murtha is but the most vocal example. Murtha was the first major American political figure to address the incident, condemning the killings as criminal acts committed “in cold blood” by Marines who snapped under the unbearable pressure of war (quoted in “What Happened at Haditha”). Support for the accused marines is not limited to the public sphere but percolates into the court process through fund-raising efforts to support their legal defense. Defense attorneys offered to the accused soldiers by the military tend to be overworked and generally less experienced and lower in rank than military prosecutors, much like public defenders in the civilian criminal justice system. Yet thanks to the fund-raising efforts, most of the accused marines have obtained more experienced, and much more expensive, civilian counsel. On pro-soldier websites, links to fundraising groups for the Haditha marines have become common (Ken Maguire, “Vietnam Vets Come to Defense of Accused Troops,” Boston Globe, October 7, 2006, AP). Commentary on these websites is emotionally charged and sharply critical of the investigation and the ongoing prosecutions. Pro-soldier

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activists decidedly oppose the military’s attempt to place responsibility on individual soldiers. In other words, they challenge the decoupling function of criminal trials. Pro-soldier movement participants often are pro-military only to the extent that the interests of the military are in line with those of soldiers themselves. The development of social movement organizations devoted to promoting the welfare of American soldiers and veterans is not a new phenomenon, nor is the opposition of such groups to the interests of the military. Organizations like the Vietnam Veterans Against the War were founded to voice the concerns of veterans who believed the military was putting its soldiers in unacceptable and unnecessary danger and failing to adequately care for them when they returned home with serious physical and psychological injuries. The perceived need for assistance to veterans of the Vietnam era gave rise to other groups, as well, such as the Vietnam Veterans of America. These organizations have remained devoted to a wide range of activities, including securing the provision of counseling services, raising and distributing money and supplies, lobbying government actors for better treatment of veterans, and holding protests and demonstrations to raise awareness for their cause. While pro-soldier organizations take differing positions regarding support for or opposition to war, their goals for improving the treatment of soldiers and veterans, as well as many of the tactics they employ to reach those goals, are similar. This is also true of pro-soldier organizations that have developed in the context of the Iraq War. Many of the statements made in support of the Haditha marines exhibit a strong emotional response to the incident, investigation, and prosecutions. The speakers are often former marines or other veterans of the Vietnam War, the Gulf War, or the current conflicts in Iraq and Afghanistan. Others are family of soldiers currently serving or recently returned from the war. More specific to our case, legal defense fund-raising is not a new tactic for pro-soldier movements. During the Vietnam War, organizations raised money to support the defense of American soldiers accused of a wide range of crimes (see Maguire, “Vietnam Vets Come to Defense of Accused Troops”). The fund-raising groups included pro-soldier organizations as well as antiwar groups who saw the prosecution of soldiers as a tactic by which the U.S. military and government could cleanse themselves of guilt for atrocities that, in this view, naturally resulted from the conduct of the Vietnam War itself. Both constitute examples of legal mobilization, only recently addressed by sociolegal and social movement scholars, as the translation of a desire into a legal “demand as an assertion of one’s rights” (Zemans 1983, 700), typically combined with other movement strategies.10 Furthermore, while stressing rational-

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ist explanations for the adoption and success of legal tactics, researchers have invested much less into the role of emotions in legal mobilization. While the law formally channels the use of emotions, it simultaneously allows for emotional pleas at several points in the legal process. For instance, judges and sometimes juries hear demands for justice from victims’ families, as well as calls for compassion from witnesses for the defense during the sentencing phase of criminal trials. Some plaintiffs in civil cases are even allowed to recover for emotional damages. Most important in our context, emotions are a potential motivator of legal claims, challenges, and mobilization. Several scholars have addressed the importance of collective rituals in generating the emotional charge needed to motivate and sustain movement activities.11 Most significant here, scholars view rituals as a means of generating solidarity and an opportunity to build emotional energy. Others focus on the role of leadership in organizing and managing the emotional reactions of movement members to turn moral outrage into effective and sustainable collective action. Central to this theme is the use of “injustice frames” (Gamson 1992) in the process of identifying the problematic social conditions to be addressed and the groups or individuals responsible for those conditions. However, anger must be paired with positive feeling such as compassion, sympathy, or hope if mobilization is to succeed.12 What role, then, do social movements play in the Haditha case? Specifically, how does emotion-driven legal mobilization challenge a legal process that seeks to attribute liability to low-level soldiers while decoupling the larger organization and larger society from their role in the killings of innocent civilians? More specifically yet, how do such challenges torpedo the bridging strategies of other actors who seek to link the Haditha killings to the My Lai massacre of Vietnam?

Movement Messages To better understand these questions, we conducted content analysis of Internet sites dedicated to fundraising for the Haditha marines’ legal defense and linked sites devoted to covering the investigations and prosecutions. We focus on the websites DefendOurMarines.com, which provides information and commentary on the Haditha investigation, and FrankWuterich.com, the site devoted to raising funds for Staff Sergeant Wuterich’s defense. FrankWuterich.com contains a variety of appeals for donations to the legal defense fund as well as updates on the course of the investigation. DefendOurMarines.com is the most significant resource on the web for information about the Haditha investigations and prosecutions. The site contains links to most stories about the incident and the legal proceedings from major American newspapers. It also links to numerous conservative blogs and news sources for reporting and com-

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mentary. In addition, it provides transcripts of testimony from the hearings that have been conducted to date, includes photographic and video evidence related to the case, and directs readers to web pages devoted to raising funds for the remaining Haditha defendants. Among the most interesting links on DefendOurMarines.com is a set of sixty-six reader responses to the question, “The Haditha Marines: Why do you care?” posted on a conservative commentator site named FreeRepublic.com.13 The original question was posted by David Allender, one of the major contributors to DefendOurMarines.com. This post asks readers to explain why they support the Haditha marines, and it asks those who have donated to the defense fund for one or more of the soldiers to explain why they took that extra step. Of these sixty-six responses, fifty-two are answers to this question. We conducted content analysis of the DefendOurMarines.com and FrankWuterich.com websites as well as the commentary responses. The content of each of these sources was examined qualitatively for evidence of emotional content, particularly emotional pleas for support. We identify emotional content as that which expresses the evaluative or interpretative feelings and reactions of the writer, especially in relation to the Haditha incident, investigation, or legal process. We then categorized the type of emotion displayed, such as anger, compassion, love, gratitude, pride, or injustice. Feelings of injustice are among the most significant and common type of emotional response to the legal process, and we expect them to be particularly prominent among those seeking or giving support to the defense in criminal proceedings. In addition, we conducted quantitative coding of the responses by supporters of the Haditha marines. We coded each response for several characteristics of the writer, including military or veteran status, relationship to current military personnel, and whether a respondent had donated to one or more defense funds for the Haditha marines. We then coded for the presence of emotional content, the type of emotion displayed, and the objects of the emotional response (enemies for feelings of anger or injustice; allies for feelings of sympathy, pride, or compassion). The characteristics of the respondents, where available, were coded based only on any identifying information provided by the writers themselves. Emotions were coded based on our evaluation of whether the content met the definition provided (fifty of the fifty-two responses did so).

Results: Depicting Haditha and the Legal Process on Movement Websites Our analysis of the content of the DefendOurMarines.com and FrankWuterich.com websites identified a range of emotions expressed by the different respondents. All types appear regularly on these web pages.

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They are provoked by and directed toward a range of targets, including enemies like the media and the political Left; allies like the legal defense team, the Haditha marines themselves, and the friends and family of the accused; and more ambiguous groups that can be characterized as neither friend nor foe, like the Marine Corps or the military broadly.14 Our analysis reveals that commentary is often charged with anger and feelings of injustice over the investigation and prosecution. In an article from October 11, 2007, titled “Our Massacre, We Loved It So: New York Times Deeply Saddened That Justice Is Being Done,” Nathaniel Helms, contributing editor of the DefendOurMarines.com website, blasts Paul von Zielbauer’s report on the reduction of charges against Staff Sergeant Wuterich. He describes the American media as “selfanointed purveyors of truth, justice, and the American way.” Helms suggests that it might be difficult for reporters like von Zielbauer (who actually reports from Baghdad) to “occupy the same high morale [sic] ground in an atmosphere filled with lethal objects rather than hot air.” Similarly, David Allender wrote a piece for DefendOurMarines.com on August 9, 2007, titled “Dear Mainstream Media: You and Congressman Murtha Must Set the Record Straight.” Other commentary expresses and evokes different emotions, including pride and compassion. Don Dinsmore’s report on “Ride & Rally,” his motorcycle ride down the West Coast to raise awareness for the Haditha marines, describes the need to raise money to support the “honest, hard-working” families of the marines. FrankWuterich.com is expressly devoted to raising funds for Staff Sergeant Wuterich’s legal defense. Compared with DefendOurMarines.com, this site focuses much more on the needs of Wuterich’s family and the difficulties of his position in order to elicit sympathetic and compassionate emotional responses. However, it does not completely ignore those it sees as enemies of the pro-soldier movement. One page on this site is dedicated to providing information on Frank Wuterich’s defamation suit against Representative Murtha, although the page only contains links to the court documents from the suit, without any of the angry and maligning language found in the commentary on DefendOurMarines.com. The opening statement on the FrankWuterich.com front page is illustrative of the site’s balance between feelings of anger toward enemies and sympathy for the accused: “YOU Can Help Support Our Troops . . . Against the Media Bias and Others Who Ignore Our Constitutional Right to a Fair Trial. In America, where one is ‘Innocent Until Proven Guilty in a Court of Law’ Marine Staff Sgt. Frank D. Wuterich, a family man and squad leader at Haditha incident needs our help NOW with Legal Defense Funding. He has always maintained his innocence and is financially responsible for his own legal counsel” (quoted from www.frankwuterich.com).

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FrankWuterich.com, like DefendOurMarines.com, contains numerous links to favorable news reports from various outlets. However, it has a much greater proportion of content that relates to the accused’s family and the need for support or expresses pride in the soldiers or the Marine Corps generally. A prominently featured story quotes Frank Wuterich’s father, David Wuterich, as saying that Frank is “a good Marine. He’s a good dad.” There is a link to a story titled “Staff Sgt. Frank Wuterich, Our Son, Our Hero,” written by Wuterich’s parents, and the following statement appears at the bottom of the page: “This could happen to you or your loved one, who proudly serves this country. It did for Dave and Rosemarie Wuterich’s son, Frank.” Our analysis of the FreeRepublic.com responses has found expressions of anger, injustice, pride, compassion, sympathy, and gratitude. By far the most commonly expressed emotions are feelings of injustice over the prosecutions. Thirty-one of the fifty-two responses coded express feelings of injustice about the investigation or legal process and those conducting it. Twelve of the fifty-two responses express anger toward a variety of enemies, including the media, the political Left, and the military command structure. Anger toward the media is occasionally directed specifically at the news outlets Time magazine and the New York Times or at reporter Tim McGirk. Anger toward the Left, when an individual target is specified, is most commonly directed toward John Murtha, but John Kerry and Bill and Hillary Clinton are also mentioned. Eleven responses display feelings of compassion or sympathy for the defendants and their families; seven express pride in the accused soldiers or the Marine Corps generally; one post expresses gratitude toward these men for their service, and one expresses frustration with those who are “trying to lose this war.” The types of emotions displayed are not evenly distributed across the various categories of respondents. Five of the fifty-two respondents identify themselves as donors, nine as current or former military personnel, and eighteen as current U.S. military personnel. Of the five donors, two express feelings of injustice, one anger, and three compassion or sympathy. Only two of the thirty-one respondents who are motivated by feelings of injustice and one of the twelve who are motivated by anger have been mobilized as donors, while three of the eleven who are motivated by compassion or sympathy have donated. It appears that those motivated by compassion or sympathy show a greater propensity to become donors.15 Our analyses support expectations that while emotions generally play an important part in mobilization, feelings of compassion or sympathy for defendants and their families are particularly associated with mobilization to donate to legal defense funds. Analyses also show that the web page explicitly dedicated to fund-raising for an accused marine contains

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more feelings of compassion and sympathy than does one devoted to a less tangible concept of support for the same soldiers. Obviously, those behind the fund-raising campaign recognize the importance of generating sympathy and compassion as a mobilizing tool.

A Note on Haunting: Affective Dimensions of Unsettled Collective Memories We might also think of the mnemonic struggles depicted here as instances of haunting and, most certainly, defensive responses to haunting. Haunting in everyday parlance and in a sense familiar to most readers refers to the presence of the ghosts of the dead among the living, regularly portrayed in popular films and television programs in contemporary (especially American) society. This idea of haunting, turned metaphorical, has recently been incorporated into the social sciences as a means of expressing the influence of the dead in present-day society. Scholars see the dead as active participants in our lives, in that memories of them (and some people’s belief in their actual mingling in the lives of the living) affect interactions, institutions, and even individual identities. Avery Gordon (1997, 8), for example, approaches the concept of haunting as a description of “how that which appears to be not there is often a seething presence, acting on and often meddling with taken-for-granted realities.”16 Others have addressed the ambiguity of history as a cause of haunting.17 Finally, Walter Benjamin has written about the activation of the dead in contemporary political struggles, an argument that is closely related to the concept of haunting.18 Benjamin’s statement, in particular, makes clear that haunting is actively produced by those who construct collective memories in ways that bring the dead, more precisely the memory of the dead, into present-day conflicts among the living. In terms of our definition of collective memory, haunting implies that the dead become acknowledged and memories of them become mutually reinforced by collectivities. But this is an instance of remembering in which the living either are not at peace with the passing of their kin, compatriots, or fellow humans or are not comfortable with the ways in which they commemorate the dead. Heonik Kwon, in his anthropological study of the massacre in My Lai and a similar incident in the village of Ha My, demonstrates this disturbing unease for the Vietnamese villagers who lost so many members of their communities in the course of the massacres and whose culture regards such death as a “bad death.” The haunting they experience is thus intensified because they are deprived of the means of appropriately honoring, in traditionally prescribed rituals, those dead who are buried in mass graves or whose resting place is unknown.19 Kwon describes with uncanny cultural sensitivity the ritual ways in

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which locals attempt to find alternative means of commemorating the dead to diminish such haunting. But what about Americans and the presence of the Vietnamese (or Iraqi) dead in their experience? Like the Vietnamese, Americans too make use of rituals to lay their dead to rest and to prevent the terror of haunting. In cases of violent death, court proceedings are often part of ritual practice. As such, legal proceedings become sites for the contestation of the past. This applies especially in the context of trials of soldiers accused of murdering civilians. The trials of My Lai and Haditha also involve complex interactions with the dead, and the concept of haunting is relevant to our understanding of such trials in three ways. First, trials against killers are mechanisms through which haunting occurs. They constitute officially sanctioned, and generally well publicized, attempts to settle disputes over the nature of the event and the perpetrator. They thereby simultaneously involve the identification and definition of the dead as either legitimate military targets or innocent victims of murder. As such, during the trial the status of the dead is unsettled, providing an opportunity for the haunting of both the military and the American public. Second, trials are attempts to resolve the ambiguity in the status of the dead and in this way to serve as a mechanism for ending haunting. Where trials find the defendants not guilty, they relieve all Americans from responsibility. Where guilty verdicts are reached, the court’s decision achieves “decoupling.” Attributing guilt to one or a few individuals, “bad apples,” liberates all “good” Americans, including the “good” military, from a sense of guilt. Thus trials can be compared with an exorcism ritual in which the military institution and society in general are cleansed of the presence of the ghosts of the victims of military atrocities. Finally, the idea that a defendant is being “sacrificed” at trial, under conditions of vehement contestation, implies that a trial may, in fact, produce a new ghost and a new haunting. However, this does not appear to be the outcome of the Haditha trial, even if one case is not yet fully closed (at the final editing of this text in July of 2011). Here the legal process— never isolated from affectively loaded societal contestation—may have served its exorcism function. American society and its military, decreasingly haunted by the ghosts of My Lai, can put the ghosts of Haditha to rest as well. Bridging challenges have prevailed. This mnemonic struggle is decided—at least for now.

Conclusions: Mnemonic Struggles, Bridging Challenges, and Haunting Consistent with arguments regarding the path dependency of collective memory, our analysis shows that memory of the past affects the way

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contemporary institutions and actors respond to current events. Actors use commemorations of a past atrocity to contextualize recent killings. At least some media reports of the Haditha incident and investigation link this mass killing of civilians to the My Lai massacre by using the historical case as a bridging metaphor. They stress the likeness of the events (mimetic bridging) and similarities of context (contextual bridging), and they conclude from consequences of the old event to anticipated ones of the current (prognostic bridging); but some also create a link in order to stress differences between the old and the new (bridging challenges). The legal process here does not feed but rather constrains negative media coverage. While challengers to the prosecution’s case are mobilized by political antipathy toward critics of the war, many also express resistance to at least one element of the logic of the legal process: the attribution of guilt to a few individuals and its associated decoupling function. Challenges to the prosecution are further supported by social movements that, with high emotional investment, engage in mnemonic battles against the mobilization of collective memory. They especially target such mobilization by war critics and possibly by the prosecution when it draws on legal precedent, here understood as an institutionalized form of collective memory. Our analysis of websites supports the conclusion that emotions play an important role in social movement mobilization, even for movements employing legal tactics. It also supports earlier claims that feelings of anger and injustice, on their own, are not likely to motivate collective action.20 In our case, they are supplemented by feelings of sympathy or compassion that provide additional, positive charges leading to action. In some respects the rest of this story about the mnemonic struggles surrounding Haditha is still to be told, and we hope future research will examine applied commemorations of My Lai for the handling of Haditha in other institutional contexts. Political hearings on the Haditha incident have been promised, and they may still occur, but not until the criminal justice system has run its course. From a presentist perspective, the activation of collective memory of My Lai within these hearings will likely depend on who is in power more than what actually happened. Close scrutiny of such hearings, should they ultimately occur, would provide important comparative material for this analysis of media reports. Our analysis of the Haditha case has added new insights to what we learned in examining the cultural processing and remembrance of My Lai in the previous chapter. Our understanding of that cell of table 1.1 that focuses on American memories of American atrocities as processed in domestic courts has been further enriched. Indeed, findings from these combined extended case studies of My Lai and Haditha speak to our basic theses presented in chapter 1. They support central parts of the argument

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and suggest further specifications: First, legal trials are indeed an arena in (and around) which struggles over the construction of collective memory occur. Second, memories constructed in past trials are mobilized by actors involved in current legal disputes through different types of bridging strategies. Third, the affective and unsettled aspects of memories can be conceived of as haunting the living and trial outcomes as potential and partial remedies. Fourth, selectivities inherent in the institutional logic of law have the potential to torpedo the legitimacy of trials in cases of the military, especially where only selected low-level actors are charged. Fifth, attaching criminal responsibility to only a few low-level individuals undermines the potential of trials to serve as arenas for the construction of collective memories of past atrocities in ways that may serve as platforms for learning and for the avoidance of future atrocities. This latter conclusion was already suggested by the My Lai case, but it is demonstrated all the more convincingly for the Haditha killings. It would be premature, however, to conclude that Justice Jackson and President Roosevelt were altogether wrong when they invested their history-writing hopes into criminal tribunals. Instead, we now set out to ask what shape American memories may take when high-level actors of foreign regimes are tried in international tribunals. Consider the case of the late president Slobodan Milosevic of Yugoslavia to see what it teaches us about that cell of table 1.1 that speaks to American memories of foreign atrocities tried in international courts of law.

Chapter 5 Slobodan Milosevic Through Lenses of Law, Diplomacy, and Media Reporting WITH

COURTNEY FAUE AND YU-JU CHIEN

I

chapter we again examine the institutional contexts that are likely to shape collective memories. And again we are concerned with American memories of atrocities. Yet these atrocities are committed not by Americans, as in the My Lai incident, but by foreign powers, and they are adjudicated not in American courts but by an international tribunal. We selected the case of the Balkan conflict because it is well suited for studying the formation of American memories. The United States played a most active role throughout the unfolding conflict; it was a central player in the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague, and American lawyers contributed much to the court’s operation.1 The United States also took center stage in diplomatic efforts to resolve the crisis and—eventually— in military intervention. Not surprisingly, then, American media reporting on the violent conflict in the Balkans was intense. Here, discourses from the diplomatic and the judicial realms as mediated by news reporting are juxtaposed. Two words of caution should be added at the outset. First, the case of Yugoslavia is not necessarily typical of ways in which the United States deals with foreign atrocities, and this is likely to have consequences for memory formation. We expect different patterns in cases in which the United States abstained from involvement, for example in the mass killings in Cambodia during the Pol Pot regime of the 1970s. There, the communist Vietnamese Army put an end to the atrocities. We should anticipate even more different memories in cases in which the United States was complicit in the events that led to grave human rights violaN THIS

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tions, for example in the 1973 overthrow of President Salvador Allende’s government in Chile by soon-to-be dictator General Augusto Pinochet. Second, the memories of the Balkans are still quite fresh, and we do not know yet what shape they will take in future decades. But here we examine close up the images produced by competing institutional spheres that entered America’s cultural “toolkit,”2 a reservoir from which future mnemonic entrepreneurs will be able to draw. The recent death of an American prosecutor involved in the ICTY gives us a first sense of how such mnemonic practices are beginning to unfold. Thus the case of the Balkan conflict, albeit a particular and relatively recent event, contributes important insights to that cell of table 1.1 that addresses American memories of foreign atrocities tried before an international tribunal.3 .

Milosevic and the Balkan Conflict On February 11, 2002, a good seven months after former Serbian and Yugoslav president Slobodan Milosevic had been handed over to the ICTY, charged with grave violations of human rights and humanitarian law, the New York Times (A10) published a timeline under the heading “Milosevic on Trial: The Accusations.” Table 5.1 shows the events marked in this timeline, organized by Yugoslav war events and atrocities, international diplomatic and military interventions, and the judicial procedures of the ICTY. We supplement the Times information (in quotation marks) with a history of the atrocities and of ICTY proceedings as recounted by the Northwestern University sociologist John Hagan and his collaborators in one of the most comprehensive examinations on the unfolding of the war and the simultaneous building of the tribunal.4 We divide this last terrifying chapter of the twentieth century into four periods, beginning in May of 1989, when Milosevic became president of Serbia, a republic within the Yugoslav Federation and home of Belgrade, Yugoslavia’s capital. Second is the war period, beginning with the wars between Serb-dominated Yugoslavia and the break-away republics of Slovenia and Croatia in 1991 and 1992. The war against Slovenia lasted just weeks, but the war against Croatia was intense and was fought for half a year. Massive human rights violations were committed in its course. Both wars ended with the internationally and widely recognized independence of the break-away republics. Immediately after these wars, civil strife broke out in the Republic of Bosnia and Herzegovina, where the Muslim and Croat minorities sought independence from Serbia, a goal opposed by Bosnia’s ethnic Serbs. The resulting civil war, tacitly supported by Serbia, lasted from 1992 through 1995. It involved massive war crimes, including systematic rape

Yugoslav History and Wars

Stage 2: During Wars (as of June 1991) 1991 “June: Slovenia and Croatia seceded from Yugoslavia. Slovenia won independence in 10 days. In Croatia, clashes between Serbian troops and Croatian defense forces erupted into fullscale war.” August to November: destruction of Vukovar, Croatia, and execution and expulsion of Croatian population. 1992 Spring 1992 into 1993: Ethnic cleansing and rape houses in Foca, Bosnia (Hagan 2003, 46–51). Ethnic cleansing in Prijedor, Bosnia, and death camps of Omarska and Keraterm (Hagan 2003, 46–51). 1993–1995: Siege of Sarajevo. 1993 “January . . . : Truce brokered in Croatian-Serbian war.” “April 1992: Bosnia and Herzegovina’s independence was recognized by the United States and European countries.”

International Intervention

February: ICTY established by UN Security Council. July: Richard Goldstone named first chief prosecutor.

October: Commission of experts established by UN Security Council Resolution 780.

ICTY

Yugoslav Wars, International Intervention, and Legal Proceedings, 1989 to 2001

Stage 1: Before Wars 1989 “May 8 . . . : Mr. Milosevic became President of Serbia.”

Year

Table 5.1

“July 15 . . . : Mr. Milosevic was elected President of Yugoslavia.” “January 1998: Albanian rebels in Kosovo assassinated a Serbian official; clashes between Serbian police and Albanians grew.”

July: Massacre at Srebrenica (Hagan 2003, chap. 5).

Stage 3: After Indictment (as of May 1999) First half of 1999: Massacres of 1999 Kosovo Albanians and expulsion on a massive scale. “June . . . : Serbian forces withdrew from Kosovo.” “October . . . : Serbs drove Mr. 2000 Milosevic from power after he tried to steal the Yugoslav presidential election from Vojislav Kostunica.”

1998

1997

1996

1995

“March 1999: NATO began bombing Yugoslavia to end the repression of Albanians in Kosovo.”

“November . . . : Mr. Milosevic and leaders from Croatia and Bosnia reached an agreement near Dayton, Ohio, to end the war. Bosnia was divided into a Muslim-Croat federation and a Bosnian Serb republic.”

(Table continues on p. 80.)

March: Beginning of Srebrenica trial. Beginning of Foca rape trial.

May: Milosevic indicted. Carla Del Ponte becomes chief prosecutor.

In absentia hearings against Radovan Karadzic and Ratko Mladic; Louise Arbour replaces Goldstone.

First trial, against Dusˇko Tadic.

Yugoslav History and Wars

Continued International Intervention

“June 28 . . . : Mr. Milosevic was sent [extradited] to the United Nations war crimes tribunal at The Hague.” “Slobodan Milosevic’s trial is scheduled to begin tomorrow at The Hague. The charges stem from the wars in Croatia, Bosnia, and Kosovo.” The indictments against Mr. Milosevic are listed in a separate line: “CROATIA 32 counts: For crimes against Croats and other non-Serbs from August 1991 to June 1992. BOSNIA 29 counts: For crimes, including genocide, against Bosnian Muslims, Bosnian Croats, and other non-Serbs. An estimated 200,000 people died and millions were driven from their homes from March 1992 to December 1995. KOSOVO 5 counts: For crimes against Kosovo Albanian citizens. Hundreds were killed and more than 800,000 were driven out from January to June in 1999.” March 11: Milosevic dies in the custody of the ICTY.

ICTY

Source: Authors’ compilation of information from Hagan (2003) and New York Times articles on Slobodan Milosevic. Note: ICTY = International Criminal Tribunal for the former Yugoslavia; UN = United Nations; NATO = North Atlantic Treaty Organization; ICC = International Criminal Court.

2006

Stage 4: After Extradition (as of June 2001) 2001

Year

Table 5.1

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campaigns, and the deadly and destructive siege of Sarajevo, Bosnia’s capital city. This war cost some two hundred thousand human lives and drove millions from their homes. The most horrific episode just experienced its fifteenth anniversary in July 2010: the Srebrenica massacre, named for the Bosnian town in which it was committed. Bosnian-Serb army units separated men and grown boys from women. They proceeded to kill more than eight thousand men in a gruesome execution campaign, hiding the bodies in mass graves. This was the first large-scale massacre committed in Europe since the end of World War II. Barely one year into the Bosnian War, the United Nations Security Council established a commission of experts to examine war-related atrocities, a step that would result in the establishment of the ICTY only half a year later. The Bosnian War ended in November 1995 with Bosnia’s independence through the famous Dayton peace agreement brokered under the tutelage of U.S. president Bill Clinton and with the active participation of Serbian president Slobodan Milosevic. Two years later Milosevic was elected president of Yugoslavia. The last of the Yugoslav wars broke out in early 1999, when Serbianlead Yugoslavia sought to repress independence moves by ethnic Albanians in the province of Kosovo. Hundreds of people were killed, and hundreds of thousands became refugees. In March 1999 the international community intervened militarily with a bombing campaign against Serbia. President Milosevic was indicted in May of the same year, marking the beginning of the immediate postwar period. The fourth and final period began when a new Belgrade administration extradited Milosevic to the ICTY on June 28, 2001. He was charged with war crimes in the Croatian, Bosnian, and Kosovo conflicts and with genocide in the Bosnian War.

Law, Diplomacy, and American Media Representations Before we step into our analysis, a brief reminder of our central themes and a note on our methods and data are in order. We have established that each societal field, such as law, scholarship, and politics, works with its own institutional logic, types of opportunities and constraints, criteria of evidence, prescriptions and proscriptions, taboos, and rules of procedure. Various institutions produce distinct types of narratives with consequences for the ways in which atrocities will be remembered and, subsequently, for future action. We are again particularly interested in the role of legal proceedings, their inherent potency for the construction of collective memories, and their particular selectivities that are manifested, for example, in specific rules of evidence and criminal law’s binary logic of

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guilty or not guilty.5 We have also established in previous chapters that narratives created by legal proceedings are always contested and that legal narratives merge and interact with those generated by other institutions, such as diplomatic, scholarly, or political accounts. In the Yugoslav case the field of diplomacy constitutes a particularly important institutional sphere. And it should play a much more powerful role than criminal justice proceedings, at least according to the influential “realist” school in international relations and its argument that the threat of trials diminishes chances of successful transitions.6 Be that as it may, diplomacy did in fact play a central role in the unfolding of the Yugoslav story. The logic of the diplomatic field differs markedly, of course, from that of law. It is not constrained by evidentiary rules of law, nor does it focus on binary logic and the exclusion of presumed evildoers. Instead, actors in the diplomatic game seek to use established social (specifically diplomatic) capital by keeping players engaged in negotiations toward the achievement of policy outcomes. This substantive outcome orientation replaces adherence to formal rules. Whatever their legal or diplomatic source, statements about a conflict are filtered by mass media. This institutional arena comes with its own selectivities, a limited repertoire of narrative genres, and a focus on individual actors and neglect of larger structural and cultural forces. These statements often involve simplifications and mischaracterizations of liberal principles of legal proceedings before they reach a broader audience, to finally settle in the sediments of collective memory.7 Mass media are crucial in our context for three reasons. First, while millions of those residing within the borders of the former Yugoslavia directly observed and experienced the events, many suffering their painful and deadly consequences, those of us outside of the war zones largely learned of this violent conflict through the intense diplomatic, military, and legal involvement of the international community as reported by news media. Second, media play a particularly significant role in the foreign policy formation of U.S. administrations, as in this policy realm the vast majority of Americans are not well informed and lack strong positions.8 Third, media matter greatly for budding international courts. We have already cited Hagan’s statements about the central role journalism played in helping Justice Jackson develop his charisma at the Nuremberg tribunal and Hagan’s contention that media may play an even more crucial role today in the age of twenty-four-hour news stations, with their seemingly instantaneous global coverage. In short, legal narratives compete with others, such as diplomatic ones, and they are filtered through mass media before they reach a broader public. As we set out to examine such competition and mediation for the atrocities committed during the Balkan conflict, specifically

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the role played by the late Slobodan Milosevic, we analyze articles published in the New York Times between 1989 and 2006. This newspaper is well suited for an examination of foreign policy themes as it is considered one of two leading American newspapers in this policy realm. Its articles and opinion pieces are often reprinted in local papers across the country. Also, previous work has demonstrated that the Times took strong positions on the Bosnian War.9 Here we are interested in the representation of Milosevic’s role in atrocities perpetrated during different periods of the prelegal and legal stages, before and after his indictment and before and after his arrest and extradition to the ICTY. We further examine how the representation of his role varies with the types of sources on which journalistic accounts are based, especially diplomatic versus legal ones. We explore the construction of sector-specific narratives from series of disjointed statements as mediated by newspaper reporting, a method that to our knowledge has not previously been used. Finally, we supplement this approach with quantitative analyses that illustrate and largely support our theoretical expectations.

Empirical Examination: Law, Diplomacy, and Media Reporting Through Time The non-sociologist will notice again that our methods differ considerably from those practiced by scholars in other disciplines. This applies especially to historians, who have produced remarkable studies on trials against perpetrators of crimes against humanity. Historians examine multiple archives in great depth and over many years to study one particular trial and provide us with detailed narratives; in contrast, we focus on the reception of legal proceedings. We also do not provide the same thick description of particular trials, the actors involved, their arguments, and public debates in multiple sectors of society. Instead, we engage in systematic sampling procedures and quantitative coding that allow for statistical depictions and even modest multivariate analyses. Finally, our approach allows us to incorporate several cases into one volume, thus capitalizing on the comparative potential of social science analysis. Obviously, the distinct disciplinary modes should be perceived not as competing but rather as supplementing each other. Interestingly, though, independent of method, there is a substantial degree of overlap in some of the conclusions.10 Seeking to identify the representation of atrocities in the Yugoslav wars, especially the role of Slobodan Milosevic, we identified all Times articles that mentioned the word Milosevic and were published between 1989, the year in which Milosevic was elected as Serb president (and two years before the outbreak of war), and the time surrounding his death

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in 2006 (seven years after the Kosovo War). The sample we selected consists of all articles published in January of each of these years, supplemented by articles published around particularly salient events, often referred to in the literature as critical discourse moments.11 The selection of January articles was a convenient way of establishing a random sample and appropriate, as the events in Yugoslavia were not structured by annual cycles. Given our specific interest in the ways in which legal processing affects media reporting and the formation of collective memory, however, we decided to supplement this sample with a purposive sample. The latter focused on sets of articles published around the dates of legal events, specifically Milosevic’s indictment, his extradition to the ICTY, and his death in custody in the spring of 2006. The total sample includes 152 articles.12 We subjected these articles to content analysis. We coded information regarding the date of publication, the articles’ dominant themes (for example, elections, war, economy, diplomacy), the types of suffering mentioned in the article (killing, injury, rape, displacement), the number of victims where applicable, the place in which the articles were published (section and page number), and their length. Within these articles we identified descriptions of 504 actions taken by Milosevic (for example, he negotiated; he supported Bosnian-Serb troops with weapons) and 210 actions by others directed at the former Serb and Yugoslav president (for example, demanding his arrest; praising his cooperativeness). For each of these actions we identified the source of information cited by journalists (for example, “according to prosecutors from the ICTY” or “according to diplomats involved in the negotiations”). We thus constructed a dataset with 714 action cases nested within the 152 articles. We analyzed the data qualitatively and quantitatively. In our qualitative analysis we used a new method of constructing quasi ideal-typical narratives. We strung together statements from diverse articles about actions taken by Milosevic, as provided by actors from a specific sector (for example, the court) that the journalist cites as the source of information. We thus arrived at sector-specific depictions of Milosevic and his role in the conflict. In addition, we conducted a standardized content analysis and, based on the resulting dataset, a statistical analysis of the set of articles and statements. Figure 5.1 illustrates the distribution of articles over the four time periods noted early in this chapter.13 Figure 5.2 similarly depicts the number of statements about actions by or directed at Slobodan Milosevic over time.14 The average annual number of New York Times articles in which the name Slobodan Milosevic appears increases during the war years and further during the postindictment period before it declines to the wartime level during the postextradition period. This increase, however, is not a

Slobodan Milosevic Figure 5.1

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Number of Sampled Articles and Mentions of Suffering, by Stage

Average Number per Year

16 14

Average number of articles per year

12 10 8 6 4 Suffering mentioned (average per year)

2 0

Stage 1 (3 years)

Stage 2 (8 years)

Stage 3 (2 years)

Stage 4 (5 years)

Source: Authors’ compilation of information from New York Times articles discussed in text. Note: Stage 1 = Before Yugoslav wars. Stage 2 = During Yugoslav wars. Stage 3 = After indictment. Stage 4 = After extradition.

reflection of the newspaper’s interest in the judicial proceedings per se. It partly reflects the fact that event-specific sets of cases within our sample focus on the legal events of indictment and extradition and on Milosevic’s death in custody. The postindictment era was also particularly intense as it involved not just judicial proceedings but also the end of the Kosovo War. More interesting to us is the distribution of articles that mention diverse types of suffering across the four periods (see table B.1 in appendix B for additional detail). Surprisingly, the horrific consequences of war and war crimes are not frequently invoked in our sample of 152 Times reports. In fact, torture and rape are almost never mentioned, despite the systematic use of both, in line with the traditional silencing of rape campaigns during times of war. Killings and injuries are more frequently reported, especially during the war years, while the displacement of populations is mentioned most often during the periods that involve judicial proceedings. Finally, just as the number of articles in which Milosevic’s name appears increases up until the indictment phase and then slightly declines, the number of actions by Milosevic described in the articles

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Figure 5.2

Actions by and at Milosevic, by Stage

45 Action by Milosevic (statements per year)

Average Number of Actions Mentioned per Year

40 35 30 25 20 15 10 5 0

Action at Milosevic (statements per year) Stage 1 (3 years)

Stage 2 (8 years)

Stage 3 (2 years)

Stage 4 (5 years)

Source: Authors’ compilation of information from New York Times articles discussed in text. Note: Stage 1 = Before Yugoslav wars. Stage 2 = During Yugoslav wars. Stage 3 = After indictment. Stage 4 = After extradition.

grows throughout the study period, indicating an intensifying focus on the former Serb and Yugoslav president throughout the legal proceedings (figure 5.2). According to a more detailed examination (not shown), the amount of reporting about Milosevic’s actions varies considerably by year: from zero (January 1998) and two (January 1989) actions at the low end to more than fifty at the high end (January 1997; January 1999). The number of actions reported at times reflects the fact that some Januaries were high-intensity months. For example, January 1997, when Milosevic annulled local elections throughout Serbia against intense and growing protests; and January 1999, the month immediately preceding the North Atlantic Treaty Organization (NATO) military campaign against Serbia, filled with negotiations and ultimatums. However, other Januaries were also crowded with intense events but are not reflected as such in the number of reports. Examples include the Januaries of 1994 and 1995, when the Bosnian War was raging but only seven and four, respectively, actions by Milosevic were reported in the Times. Actions reported around special events, such as Milosevic’s indictment in 1999, his extradition to the ICTY in 2001, the beginning of his trial in 2002, and his death in March 2006, are again much more numerous.

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Yet the number of actions reported during the course of the trial was very low, with none at all during the Januaries of 2003 and 2004 and two and five, respectively, in the Januaries of 2005 and 2006. This pattern confirms findings from earlier research that news media are more interested in the catastrophic events that may be the basis for later trials and in the outcome of trials than in ongoing judicial proceedings.15 While the intensity of reporting thus varies considerably over time, one finding is constant. Slobodan Milosevic does not typically appear in a positive light. The light in which he is cast varies, however, with the institutional sector by which information is provided, and it changes across the four stages distinguished earlier. The main competitors are the worlds of diplomacy and law, with the latter increasingly replacing the former in the later stages of the unfolding drama.

Law Versus Diplomacy: Distinct Narratives on Milosevic and the Yugoslav Wars Institution-specific narratives are best suited to examining the different ways in which law and diplomacy depict Milosevic’s actions. We first merge statements citing judicial sources. The narratives address both Milosevic’s actions and measures taken against him. Dates of the articles from which statements are selected are provided in parentheses. The following paragraphs summarize all narratives within our sample but a couple of irrelevant statements by court officials. Specifically, they are concerned with Milosevic’s crimes, his command responsibility, his criminal intent, and, to a lesser extent, procedural issues. The first paragraph concerns the aggressive acts and crimes that are at issue. We read about Milosevic’s campaign, his declaration of war, his campaign of terror and violence, his killing and committing crimes. We also read about the specific types of crimes for which he was eventually charged (forced expulsion, killing, specifically killing witnesses). Here the actus reus, the criminal act, is established, a necessary requirement on the way toward a criminal conviction:16 Chief Prosecutor Carla Del Ponte announces an extended indictment against Milosevic for crimes during the conflicts in Bosnia and Croatia, which may include charges of genocide (June 30, 2001). An ICTY investigator states that Del Ponte has a list of Milosevic’s war crimes for actions in Kosovo, and Nancy Paterson from the prosecutor’s office speaks to the evidence on which the indictment against Milosevic is based. In the same article Del Ponte is cited with a reference to an extended indictment in which five additional killing sites are addressed (July 2, 2001). Later she argues that “the common denominator of all this criminal activity was— one must never forget—forced expulsion” (January 31, 2002). Referring

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to his behavior in court, and again citing Del Ponte, an article reports that while “the great Milosevic” had killed and committed crimes, he stared at the floor and refused to talk to her (February 9, 2002). Although the latest statements mostly deal with Milosevic’s presumably inappropriate use of medications and his death, a prosecutor is cited one final time, reminding readers that Milosevic instigated crimes in Bosnia and Croatia by supplying and financing armies (March 13, 2006). The second set of statements is in line with the demands of criminal proceedings, especially in cases like this, in which high-ranking actors have managed to keep their hands clean: command responsibility has to be established. Thus in some of the following statements Milosevic is depicted as the top of a chain of command, as in the “Milosevic-led Serbian government” (Chief Prosecutor Richard Goldstone). This theme is also reflected in a statement on his “use of his Deputy Prime Minister” and in another on his controlling Serb forces. Such statements are meant to show Milosevic’s use of the state and its organization as tools in the execution of crimes: An ICTY investigator is cited as arguing that the court will focus on Zeljko Raznatovic (“Arkan”) and Vojislav Seselj (paramilitary leaders) to climb the chain of command to Milosevic but that an indictment of all three could be very difficult (January 28, 1996). This situation changes after the Kosovo War, in which Milosevic was clearly the commander in chief, as indicated by the following statements made five years later: According to Chief Prosecutor Carla Del Ponte, considerations are under way to try Milosevic for the Croatian and Bosnian Wars as well as for Kosovo (January 10, 2002). Investigators for the ICTY refer to Milosevic’s campaign against ethnic Albanians in Kosovo (July 2, 2001). Citing a prosecutor, a later article informs readers that Miloseviccontrolled Serb forces killed witnesses (February 16, 2002). Nancy Paterson, a member of the prosecution team, speaks to Milosevic’s use of Deputy Prime Minister Nikola Sainovic “as his trusted man on the ground” doing dirty police work (July 2, 2001). Furthermore, criminal proceedings need to establish criminal intent. This judicial requirement is reflected in a third set of statements made by court actors about Slobodan Milosevic and cited in the Times. Here, terms such as “premeditated,” “grand plan,” and “criminal plan” speak to the murderous intent with which Milosevic ordered his underlings to engage in crimes: The court’s indictment states that Milosevic’s declaration of war gave him control over republican and federal police units and over all key institutions and that Milosevic “planned, instigated, ordered, committed, or otherwise aided and abetted in a campaign of terror and violence directed at Kosovo Albanian civilians” (July 3, 2001). Later, Milosevic is

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presented as the instigator of Serb attacks on civilians. Del Ponte is also cited explicating the premeditated nature of his actions by referring to his intent “to forge a Serbian nation that was ethnically pure . . . , ‘a common criminal plan’” (January 10, 2002). Some three weeks later Del Ponte is again quoted with a similar argument: “The grand project, the accused Milosevic’s overall plan, which is already evident from 1989, was an essentially Serbian state, dominated by Belgrade” (January 31, 2002). Simultaneously, according to prosecutors, the prosecution seeks to prove that Milosevic is responsible for atrocities because he knew or should have known that they were occurring (February 19, 2002).17 The preceding paragraphs, made up of individual utterances about Milosevic’s actions over a period of more than ten years, summarize all New York Times text that is explicitly based on ICTY information in the entire set of 152 articles. It concerns Milosevic’s role in the Balkan conflict and the massive humanitarian and human rights crimes committed in their course. In line with our expectations, this narrative is thoroughly informed by the institutional logic of law, its individualizing focus, its stress on legal categories, its procedural demands, and its binary and exclusionary logic. Most statements depict Milosevic as an individual evildoer. One additional observation about this court narrative concerns the time frame used by the criminal court. In the case of the Nuremberg tribunal against leading Nazis, the time frame under consideration by the tribunal was limited to the period of the war, from 1939 to 1945. The same applies to the Yugoslav case. Yet while the reduced time frame in the Nuremberg case excluded from consideration the systematic preparation of inhumanities against Jews and others in times of peace, in the Yugoslav case it excluded the complicated history of ethnic tension, including historic wars, that had served as a central tool in mnemonic battles preceding the Balkan conflict. Atrocities committed against Serbs during World War II, as well as the imposed “harmony” during the authoritarian regime under the post–World War II leader Marshall Tito, are especially relevant here. In both cases the temporal framing serves the interest of achieving criminal convictions. In Nuremberg, an inclusion of prewar crimes would have resulted in defense arguments that the trial offended against principles of national sovereignty, then sacred in international law. In the Milosevic case, however, the limitation of the time frame in the court-informed narrative excluded potentially mitigating circumstances and supported the binary logic of law in which Milosevic must be found guilty if he is not to be found innocent. Clearly, this logic also aimed at Milosevic’s exclusion from political life and civil society. In short then, the court-based narrative of the New York Times, constituted from many different articles over a ten-year period, specifies

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Milosevic’s behaviors under recognized legal categories. It attributes criminal liability to him in cases in which atrocities were committed by others, and it seeks to demonstrate that his state of mind fulfills the preconditions for a criminal conviction. Other statements explicate legal strategies to achieve a conviction. We find a depiction of a historical figure, read through the lens of a criminal tribunal. How does this compare with the image of Milosevic drawn up from Times statements that cite diplomatic sources? Here a different logic is at work. We expect to see this logic reflected in a different portrayal of Milosevic—and we do. Just as the Times’s criminal court–based narrative reflects the logic of criminal law, so the narrative based on diplomatic sources reflects the distinct logic of the world of diplomacy. Diplomacy applies neither an exclusionary nor a binary “guilty–not guilty” logic. It is also not primarily oriented toward procedure. Instead, diplomats seek to use current political actors and diplomatic capital to settle disputes and to achieve desired outcomes. Accordingly, the Milosevic presented in statements informed by diplomatic sources appears in a radically different light. As the following paragraphs show, however, there is also some degree of heterogeneity. We see substantial variation by phases of the process. Also the specific diplomatic sources of information matter. European and United Nations diplomats are more generous with friendly assessments than are their American colleagues. In the late stages of the Croatian War, Cyrus R. Vance, the United Nations’ special envoy and secretary of state under President Jimmy Carter, informs the reporter that Milosevic formally agreed to support Vance’s peace plan “should the circumstances on the ground permit it.” The Belgrade government also reversed initial opposition to peacekeeping forces (January 1, 1992). An article of the same month, informed by statements of Lord Peter Carrington (chairman of the European Community peace conference), reports that Milosevic expressed condolences for the deaths of four Italian and one French peace monitor, attributing responsibility to Serbian extremists in the Yugoslav Air Force. Furthermore, Milosevic agrees for the first time to Carrington’s plan of accepting Serbian enclaves in other republics’ territories, as long as their minority rights are protected (January 10, 1992). Diplomats, in this early stage of the Balkan conflict, primarily during the Croatian War, thus portray a picture of Milosevic that differs radically from the image we encounter in the judicial statements. Milosevic appears as an actor who is conciliatory and interested in negotiations and peace. Astonishing in hindsight, this portrait continues into the yet crueler Bosnian War. Once again, Cyrus Vance plays a central role in this period in collaboration with former British foreign secretary Lord David Owen. Vance and Owen were crucial in developing the Vance-Owen Peace Plan

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in January 1993. This plan was eventually agreed upon in Athens in May of 1993. Later, however, it was rejected by a Bosnian-Serb Assembly meeting during which Radovan Karadzic, president of the self-declared Serbian Republic of Bosnia-Herzegovina and currently a defendant before the ICTY, played a particularly destructive role. Consider the following statements from the early stages of the Bosnian War: In January of 1993, Cyrus Vance is cited regarding a meeting with Milosevic in which the latter agreed to help with ending the war in Bosnia and Herzegovina; Vance reportedly adds that Milosevic made and kept the same kind of promise more than a year earlier in the war between Serbs and Croats. In the same article participants in the Belgrade peace talks are cited as saying that Milosevic put pressure on Bosnian Serb leader Radovan Karadzic to agree to a peace plan and that Milosevic was in a position to deny weapons, ammunition, food, and electricity to Bosnian forces. Milosevic himself is quoted as saying to Vance, “Peace is in our vital interest. I will do everything in my power” (January 7, 1993). Vance reports about another line of conflict, albeit not yet war, that Milosevic “was prepared to reopen primary schools for Albanians, permit improvements in their health care and allow an independent census.” According to statements by Vance and Owen, Milosevic’s attitude had made the two chairmen optimistic. They will seek to include Milosevic on talks about ending the Bosnian War (January 8, 1993). Milosevic is quoted accordingly: “We are here to support peace. I hope all sides will use this opportunity to end that cruel war” (January 12, 1993). Milosevic is not portrayed simply as a conciliatory contributor to peace efforts. As the following statements make clear, he is depicted even as an antagonist to those aggressive actors who seek to drive Bosnia further into its destructive civil war, most noteworthy president Karadzic: Just one day later officials close to the talks report that pressure from Milosevic caused Karadzic to change his mind about the UN agreement. Cyrus Vance is cited as presenting the information that Milosevic and President Dobrika Cosic of the Yugoslav Federation agreed to the UN peace plan. According to “a person who took part in the process,” Milosevic and Cosic “squeezed” Karadzic for about two hours before he gave in. Fred Eckhard, a spokesperson for Vance and Owen, refers to Milosevic and Cosic as “a persuasive team and persuasive force” (January 13, 1993), and Vance is quoted as saying that the Serbian leader acted as “a broker in the process that led to the Serb-Croat armistice” (January 19, 1993). Later that month a UN spokesperson reports that Milosevic “agreed to try to use his influence to end the battles” (January 24, 1993). The image of Milosevic drawn from diplomatic sources differs dramatically from that provided by the ICTY. It is certainly not dictated by an exclusionary logic. Instead, Milosevic appears mostly as a politician

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who is cooperative and concerned with the establishment of peace. The depiction is also concerned not with evidentiary criteria or procedural matters but with the achievement of policy goals in the context of peace negotiations. We have to be careful not to contrast this narrative too quickly with the very distinct portrayal that is based on ICTY-issued statements, as this diplomatic depiction of Milosevic is drawn from a much earlier period. To be sure, these earlier years were already an era of horrendous cruelty. Yet potential mutations of the diplomatic narrative warrant closer inspection, controlling for the era from which the court narrative is constructed. In other words, are diplomatic and court statements as distinct as they appear when we examine only those made in a specific period? In addition to controlling for time period, we also have to distinguish between the different regimes under which diplomats work, as these governments or international organizations ultimately determine the policy goals toward which diplomatic action is oriented. Diplomats cited in the preceding narrative represent European governments, the European Union, and the United Nations. Distinctly more ambivalent, even outright negative, depictions of Milosevic originate from American diplomatic sources as early as January 1993. During this period the Clinton administration was unwilling to give up on Milosevic as a potential partner in peace negotiations, but it was concerned that the proposed peace settlement would legitimize, or at least implicitly acquiesce to, Serbian aggression and atrocities. Warren M. Christopher, Clinton’s secretary of state, is quoted for the first time with a call “for war crimes trials for atrocities in both Iraq and the Balkans” (January 24, 1993). Simultaneously, Lawrence Eagleburger, a former secretary of state, suggests that Milosevic be listed as a war criminal, along with Karadzic and others, despite his involvement in the European Community peace negotiations. A Clinton administration report sent to the UN for possible use in future war crimes trials “details dozens of incidents of murder, torture, the abuse of civilians in detention centers, the wanton destruction of property and forcible deportations of civilians by Serbian authorities and soldiers in Bosnia and Herzegovina” (January 27, 1993). Unspecified diplomatic sources are also cited with the observation that Milosevic exploits a recent Croatian attack on Serbian rebels to maintain the appearance of Serb victimization by Croatia (January 29, 2003). In addition to distinct policies staked out by different national governments, historical time also affects the message from diplomatic sources as constructed by the Times. Space does not allow for a presentation of all statements about Milosevic that reference diplomats as informants. However, selections illustrate how the narrative on Milosevic becomes

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markedly more negative despite a simultaneous desire to maintain him as a negotiation partner up to the point of his indictment. A January 30, 1995, article, anticipating the Dayton peace negotiations, cites Western officials expressing the hope that Milosevic will play a crucial role by recognizing the international borders proposed for Croatia. Later in the same year, Milosevic indeed traveled to attend the Clinton-brokered peace negotiations at the Wright-Patterson Air Force Base near Dayton, Ohio. There, in November 1995, a peace agreement was reached. The agreement was formally signed in Paris on December 14, 1995. This accord was significant as it put an end to the three-and-a-half-year war in Bosnia. Yet shortly after Dayton, we again read mixed evaluations of Milosevic’s role. While a January 23, 1996, article cites John Shattuck, U.S. assistant secretary for human rights, with positive comments on Milosevic’s cooperation regarding human rights investigations and a pending tour of mass graves, the same edition of the Times points out that Milosevic had not settled a crucial dispute with Croat president Franjo Tudjman about a peninsula of strategic importance (Prevlaka Peninsula). One year later, we still find a mixed assessment, but the rhetoric becomes more negative overall. Western diplomats remind journalists of Milosevic’s support for the Dayton peace accord and inform them of his attempts to have Yugoslavia rejoin European organizations and enter into bodies such as the UN and the International Monetary Fund. But a letter by Warren Christopher from the same month warns of further isolation of Serbia should opposition election victories not be recognized by the Milosevic administration (January 4, 1997). At this point, Milosevic’s standing in the international community has clearly weakened, as the following quotation from a European diplomat indicates: “Milosevic has lost a lot of his power, his image of invulnerability and his prestige. He can only come out of all of this a loser, the question is how big a loser” (January 13, 1997). Part of the loss of prestige is attributed to his reputation for unreliability. Nicholas Burns, a U.S. State Department spokesman, for example, states in the dispute over election results that the Milosevic government periodically offers the opposition an olive branch, only to take it away (January 15, 1997). Clearly, the positive portraits from earlier years, which read like nomination letters suggesting Milosevic for the Nobel Peace Prize, have given way to considerable skepticism among diplomats. This impression intensifies two years later, during the build-up to the military confrontation in Kosovo. James Rubin, a State Department spokesman, is cited as saying that Milosevic will be held responsible (along with Kosovo Albanians) for the security of peace monitors (January 16, 1999). In response to a massacre of Kosovo Albanian civilians, the State Department demands that

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the Milosevic administration remove extra soldiers sent to Kosovo in recent months, and Rubin says, “Mr. Milosevic was being asked to identify and ‘take action’ against those who . . . ordered the massacre and to allow the International War Crimes Tribunal for the former Yugoslavia . . . into Kosovo to investigate” (January 17, 1999). The last quotation is significant as it illustrates that the fields of law and diplomacy are not just competitors. Once diplomats begin to execute policies aimed at the exclusion of political actors, they may use the exclusionary and binary logic of criminal courts to support their new position. Yet with Milosevic still in power, ambivalence remained, not just among European and UN diplomats but also among their American counterparts. We do not wish to burden the reader with too detailed a depiction of that part of media reporting that is fed by diplomatic sources. The essential points we seek to make are expressed in the preceding reports. The remaining reports continue the recent, increasingly critical tone toward Milosevic. In 1999, while Milosevic himself is still cited in a January 20th article making comments on the provocative nature of actions by the Kosovo Liberation Army, articles on the following two days depict him openly as an enemy of the West and criticize his expulsion of an American human rights diplomat from Serbia. Yet although diplomacy begins to threaten with war, it continues to hold the door open for a diplomatic resolution. Milosevic, still in power, is simultaneously portrayed as aggressive but worthy as a participant in negotiations. Both Robin Cook, the new British foreign secretary, and, four months later (now with NATO attacks against Serbia under way), U.S. State Department officials comment on the need to involve Milosevic in meetings with international arbiters (articles of January 31 and May 15 of 1999). With the end of NATO warfare and the defeat of Yugoslavia approaching, and after the indictment of Milosevic by the ICTY, all in the spring of 1999, diplomatic activity involving Milosevic almost comes to a halt. News media cite few diplomatic sources in this phase. Most exceptions are from two of Serbia’s fellow Christian Orthodox countries. One is neighboring Greece, interested in maintaining Serb strength vis-à-vis Albania and Macedonia, neighbors to both Serbia and to Greece that Greece views with skepticism. The other is Russia, a longtime Serbian ally. Shortly before the ICTY issued its indictment against Milosevic, even the Clinton administration still indicated that the pending “indictment . . . would not preclude direct negotiations” with Milosevic (May 27, 1999). Yet eight months later the Times reports that “Secretary of State Madeline K. Albright has told senior aides that one of her goals, before leaving the office a year from now, is to see Mr. Milosevic out of office” (January 24, 2000).

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Our analysis shows that the distinct institutional logics of the diplomatic and legal fields, despite some similarities, produce very different narratives, as reflected in journalistic accounts. Both narratives focus on specific individual actors, and Milosevic clearly is the prime character in these stories. Yet the diplomatic field’s depiction of Milosevic is more ambivalent and varied than that produced under the logic of the criminal court. This variation reflects the nation- and time-specific policy goals under which diplomatic action unfolds. Over time, the growing weight of the criminal proceedings, progressing from investigation through indictment to trial, in combination with the shifting policy goals that direct diplomacy result in an increasingly close association between Milosevic and the atrocities committed during the Yugoslav wars.

Narratives in Numbers: Counting Arguments and the Weight of Sector Versus Time How do these conclusions, derived from an interpretive analysis of narratives, hold up under statistical examination? What do numbers say about the relative impact of judicial versus diplomatic sectors and distinct stages on the depiction of Milosevic? A cursory look at statements about actions taken by Slobodan Milosevic reveals that relatively few are informed by court sources (22). More are based on information provided by diplomats (32), by diverse governments in Yugoslavia and the Western world (38), and by Milosevic himself and by his representatives (113). Almost half of the statements about Milosevic do not name a source of information (308 combined). The relative scarcity of statements for which the court is cited as a source likely reflects the lack of a permanent Times correspondent at the ICTY, attesting to resources, budgets, and media priorities as potential contributors to stories and narratives that may partly shape collective memory. Nevertheless, journalists explicitly refer to court actors as sources of information in twenty-two statements about Milosevic’s actions. Most of these statements are concentrated in the postindictment and postextradition or trial phases. Not surprisingly, their character differs considerably from that of statements informed by diplomats and those for which no source is provided. As figure 5.3 illustrates, more than 30 percent of ICTY-informed statements address hostile actions by Milosevic, such as the inflammation of nationalism and hatred, military action to advance the Serbian cause, advancing authoritarianism, and uncooperativeness with the West. Almost 20 percent address issues such as human rights or humanitarian law offenses and their preparation, and nearly 10 percent comment on

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Figure 5.3

Depictions of Milosevic’s Actions, Based on Sources

60

Hostile actions Conciliatory actions Human rights offenses and their preparation Legal strategies Death in custody Other

50

Percentage

40 30 20 10 0 Journalists

Diplomats

International Criminal Tribunal for the former Yugoslavia/court

Source: Authors’ compilation of information from New York Times articles discussed in text. Note: Other categories of sources, including Milosevic or his representatives, Western governments, and others, are omitted from the figure. Hostile actions include enhanced nationalism and conflicts, military action to advance the Serbian cause, uncooperativeness with the West or the United Nations, and advancement of authoritarian causes. Human rights offenses and their preparation include (advancing) human rights offenses and commanding of these actions.

legal strategies. More than 30 percent speak to Milosevic’s death in custody of the ICTY. These last are mostly defensive in nature, attributing the death to Milosevic’s deliberately improper use of medications to impede legal proceedings and to force release to medical care in Russia. Even the basic information provided in figure 5.3 indicates that the image of Milosevic is quite different when accounts rely on diplomatic sources for information. Half of these statements describe a man who engages in conciliatory action. Yet diplomats do not consistently paint a rosy picture of Milosevic. About one-third of statements refer to hostile actions generally, and 6 percent to human rights offenses specifically. The many statements about Milosevic for which journalists do not cite sources mention his hostile actions most frequently, but a good 20 percent also depict a conciliatory Milosevic. Here we see reflected traces of both the accusatory nature of the criminal law discourse and the conciliatory tone of diplomacy.

Slobodan Milosevic Figure 5.4

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Individualizing Nature of Articles Mentioning Suffering and Milosevic’s Actions, by Stage

5.0 4.5 Articles per Year

4.0 3.5 3.0 2.5 2.0 1.5 1.0 0.5 0

Stage 1 (3 years)

Stage 2 (8 years)

No mention of Milosevic’s actions Milosevic’s aggressive (forceful) actions

Stage 3 (2 years)

Stage 4 (5 years)

Milosevic’s other actions

Source: Authors’ compilation of New York Times articles discussed in text. Note: Aggressive (forceful) actions include general forceful aggressive actions (military action to advance the Serbian cause, forceful action to advance an authoritarian cause) and human rights offenses and their preparation (advancing and commanding human rights offenses). Stage 1 = Before Yugoslav wars. Stage 2 = During Yugoslav wars. Stage 3 = After indictment. Stage 4 = After extradition.

The association between negative depictions of Milosevic and the timing of events is reflected in figure 5.4, which illustrates patterns from articles in which atrocities are reported and shows simultaneously the proportion of articles in which different types of actions by Milosevic are depicted. While Milosevic’s actions are referred to in almost all of these articles, the proportion of aggressive and forceful actions as well as human rights offenses and their preparation is highest in the final, postextradition, or trial, stage. In an attempt to separate time and sector effects we conducted a multivariate analysis in which we regressed the type of action undertaken by Milosevic on the sources of information and on time periods (see table 5.2). Looking first at the likelihood of references to conciliatory actions, we find that model 1 shows that information provided by diplomats is significantly more likely to view Milosevic as a conciliatory actor than are journalistic and judicial sources. We also see that Milosevic is significantly less likely to be portrayed as a conciliatory actor after extradition

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Table 5.2

Logistic Regression Coefficients Model 1 Conciliatory Actions

Sourcesa Milosevic and representatives Diplomats

−.061 (.403) −.147 (.313)

−.934# (.499) .560 (.769) 1.098* (.453) −.040 (.435) −.069 (.365)

.126 (.314) −2.021*** (.409)

.126 (.385) .158 (.403)

.127 (.326) .848* (.401)

Judicial Western governments Other source Stagesb After indictment After extradition Constant −2 Log-likelihood

Model 2 Aggressive (Forceful) Actions

−.805 (.188) 478.60

−2.342*** (.263) 430.27

Source: Authors’ compilation of data from New York Times articles about Slobodan Milosevic. Note: Standard errors are in parentheses. Conciliatory actions include cooperating with the West or the United Nations, stressing peaceful means, advancing Yugoslavian unity, and making concessions. Aggressive (forceful) actions include military action to advance the Serbian cause, (advancing) human rights offenses, commanding human rights offenses, and forceful action to advance an authoritarian cause. a “Journalistic” is the omitted reference category in model 2. Journalistic and judicial sources are the reference category in model 1. In the latter case there were extremely small cell frequencies for the “journalistic” dummy variable, and thus it is used as part of the reference category. Additional analyses that eliminated cases coded as “1” on judicial source and analyses using alternative reference categories yielded the same substantive results. b “Before war” and “during war” are omitted as the reference categories. # p